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NTS SINGLE COPY. 



VIEWS 



AMERICAN CONSTITUTIONAL LAW, M 

IN ITS BEARING UPON mW^Ci 



AMERICAN SLAVERY. 



BY WILLIAM GOODELL. 



SECOND EDITION; 



REVISED, WITH ADDITIONS. 



'• The Reasonableness of Law is the Soul of Law. 
(Jenks.) Common Law Maxim. 



UTICA, N.Y. 
PUBLISHED BY LAWSON & CHAPLIN. 




1845. 



VIEWS 



OF 



AMERICAN CONSTITUTIONAL LAW, 



IN ITS BEARING UPON 



AMERICAN SLAVERY. 



BY WILLIAM GOODELL. 






SECOND EDITION 



REVISED, WITH ADDITIONS. 



**The Reasonableness of Law is the soul of Law."— (JcnAs.) Com. Law Maxim. 



UT1CA, N. Y. 

PUBLISHED BY LAWSON & CHAPLIN 
1845. 






Entered according to the Act of Congress, in the year 1&45, by 
WILLIAM GOODELL, 
In the Clerk's Office of the District Court of the United States, for the 
Northern District of New York. 



C. Van Benthuysen & Co #> 
Printers, Albany. 



INTRODUCTION. 

Sure triumph of truth— Former construction of the British Constitution, by 
York, Talbot, Blackstone, and Mansfield— New construction involved in the 
decision of Lord Mansfield, in the Somerset Case, (1772)— Revolution in 
English Jurisprudence— SecTet of that Revolution— Granville Sharpe— Origin 
;and foundation of law, immutable and eternal. 

The main views I have presented will assuredly be con- 
demned, — and in that condemnation I read the sure presage 
of their prevalence, They will be condemned, in this sel- 
fish and bewildered world, because they are true, 'and they 
will ultimately triumph, for the same reason. The popular 
suffrage may determine whether they shall be received in 
time to prevent the wreck of the present Federal Govern- 
ment: — but it can no more decide against their final recep- 
tion than it can decide against the final reception of any other 
truths of science, physical or moral. There is immortality 
in Truth. But all lies are doomed. 

Up to the month of May, 1772, it was as currently believed 
in England, that the slaves held and sold there, were thus 
held and sold, legally, and in accordance with the British 
Constitution, as it is now believed that the slaves held and 
sold in the United States of America, are thus held and sold, 
legally, and in accordance with the American Constitution. 
But the decision of Lord Chief Justice Mansfield, in 
the case of James Somerset, at the date above mentioned, 
revolutionized the jurisprudence of the realm, overthrew 
ancient precedents, reversed venerated decisions — and in- 
scribed beneath the cross of St. George, on the royal flag — 
M slaves can not breathe in England" 

And what was the secret of that mighty revolution? — It 
was this. — The simple foundation truth of all legitimate and 
valid jurisprudence, divine and human, that Right is author- 
ity — that reason is the soul of law, had obtained a lodgment 
an one human heart, that truly apprehended its meaning, and 



4 INTRODUCTION. 

did not hold it an idle abstraction. That heart was not the 
heart of a York or a Talbot, (the Attorney and Solicitor 
General of their day,) who, in 1729 had recorded their opin- 
ions in favor of the slave master's claim. It was not the 
heart of a titled judge, Dr. Blackstone, who, at a later day, 
finding that a passage in his learned Commentaries was: ef- 
fectively quoted, at pending trials, in favor of the* rights of 
the enslaved, adroitly furnished a new and revised edition 
of them, in season to he used, triumphantly, during the trials y 
by the slave master's counsel. It was not the heart of Sir 
James Eyre, Recorder of London ; who, when retained as 
counsel, on behalf of the oppressed, adduced, to dishearten 
his employer, the opinions of York and Talbot, and added 
that the Lord Chief Justice was agreed with them. It was 
not the heart of any one of those eminent lawyers who, when 
consulted by the friends of the enslaved, declared " that the 
laws were against them." It was not the heart of that Lord 
Chief Justice Mansfield himself, whom history has ranked 
with "the most distinguished lawyers" of that age, and who 
along witrf them, "crouched down beneath the lie" (of legal 
enslavement) and " affirmed its validity" — -the same Lord 
Chief Justice, who in 1771 (one year before his own immor- 
tal decision against legal slavery) was so firmly attached to 
the ancient precedents in its favor, as to refuse giving judg- 
ment against the noted kidnapper, Stapyltgp, when an hon- 
est jury had given verdict against him; — that Chief Jus'ice 
Mansfield, who, during this same Somerset trial, when over- 
powered by the argument for liberty, and dreading the pub- 
lic rebuke, delayed judgment, hesitated, sought, unsuccess- 
fully, to shun the issue, by beseeching the slave master to 
manumit the slave, and whose final decision (the boast and 
glory of his country) was delivered with a " lawyer-like cir- 
cumlocution" that betrayed the inward bent of his mind, 
and the reluctance with which he yielded to the claims of 
equity, and the rising-voice of human nature.* 

* See Charles Stuart's Memoir of Granville Sharpe, which cod tains in detail, 
the particulars above alluded to. 



INTRODUCTION. 5 

No ! It was not to hearts like these, that the "sou]" and 
vitality of British Constitutional Law, and of all law, were 
revealed ! It was reserved to Granville Sharpe, without 
rank, without office, without literary pretension, or legal 
erudition, in the face of all the law authorities of his age 
and nation, to plant himself upon the right and the true, to 
breast the current, almost single handed and alone, till he 
saw the Eight prevail, and Mansfield officially announce 
it — and Blackstone condescendingly record and endorse it — 
thus rearing a column of glory under which their own 
learned lumber, with that of Talbot and York, lies buried 
out of sight, among rubbish of the dark ages ! Thus shall 
it always. be ! 

Whether my argument has been happily presented, time 
and the public voice must determine, though they can not 
nullify the truths I present. I only ask the candid reader to 
weigh the evidences of those truths. I will not dishonor 
his reason by asking him whether the reception and prac- 
tice of them would degrade our common humanity, or offend 
our benevolent Creator. There is neither legitimate au- 
thority, nor binding precedent, nor valid law, except in 
harmony with His will. Let the Yorks and the Talbots, 
the Blackstones and the Mansfields of America understand 
that : — and let them remember their relation to the people, 
to whom Divine Providence is rapidly teaching the alphabet 
of that sublime truth. It is for the people I have written ; — 
for the people, by the grace of God, and under his authority, 
free, independent and sovereign — the divinely appointed ar- 
biters of their own destinies, the students (if they will 
understand themselves) and the subjects, not the framers, 
nor yet the arbiters of those original laws, immutable and 
eternal, upon which human nature itself was modelled, 
and from the sure operation of which, no age, no nation, no 
race of men, ever escaped. 



GENERAL NOTE. 

In the preparation of these pages, I have had recourse to 
whatever, within my reach, was thought adapted to throw 
light on the topics under discussion. I have availed myself, 
freely, of the researches. of my fellow-laborers, in the cause 
of human freedom, who, in their constitutional investiga- 
tions, have preceded me. Very few of them have looked, 
however, in the direction at which I have aimed, and those 
few have confined their inquiries to only one or two points, 
and built their argument on much narrower grounds. The 
right to restrict slavery, on the admission of new States-the 
power of Congress over the Federal District and Territories, 
and over the inter State slave-trade-the constitutionality of 
the law of '93 — the obligation to return fugitive slaves — 
the right of trial by jury — the aggressions of the slave codes 
on the rights of the free States — the right of petition — the 
freedom of speech and of the press — these have been the 
more common topics of discussion, and the argument is per- 
haps exhausted,- on the commonly occupied grounds. — In 
the field I have now entered, the marks of occupancy are 
comparatively sparse and new. Yet many implements 
wielded in other departments may find a place here. 



CHAPTER I. 
THE QUESTION A$ ISSUE. 

Its meaning and magnitude— Impossibility of evasion— Testimony of Ameri- 
can Statesmen— Mo middle ground— Illustrative politics of the country— State 
action— Action of the Federal Government— The alternative. 

Do we live under a free government, or a despotism ? 
Does the organic law of our national government enable it 
to " establish justice ?" Or is it founded upon a " compro- 
mise" with injustice? Does it " secure the blessings of 
liberty" to its founders and their "posterity,"* or does it. 
guaranty the curses of slavery to large and increasing num- 
bers of them, and ensure the ultimate wreck of the whole 
nation's freedom ? Does it "form a more perfect union," 
or does it by " 'permitting one half of the citizens! to 
trample upon the rights of the other, transform those into 
despots, and these into enemies V — thus drawing down up- 
on itself the "execration" of wise statesmen? Does it 
" ensure domestic tranquility," or does it " guaranty" or to- 
lerate by " compromise" the most perfect possible specimen 
of " domestic" disorder ? Does it "provide for the common 
defence," or does it "compromise" the security of the most 
defenceless of its citizens — " guaranty" or permit the suc- 
cessful invasion of all their rights, and "guaranty" likewise, 
or permit, by "compromise" the well known cause of all 
our great exposure to internal commotion — the admitted and 
insuperable obstacle to any effective defence against a fo- 
reign invasion, by a "third rate maritime power?" Does 
it "provide for the general welfare," or does it " compro- 
mise" that welfare, " guaranty" its deadliest enemy, and 
bind its citizens to stand ready, at a moment's warning, to 
engage in 'a bloody contest against liberty, against their 
own declaration of self-evident truths, against man's 
inalienable rights — " a contest" in which " no attribute of 
the Almighty could take sides with them ?" Is it a gov- 
ernment in favor of human improvement, human liberty, 
and human happiness, or against them? In favor of virtue 

* "The noblest blood of Virginia runs in the veins of slaves." 

t In this expression of Jefferson, observe the conceded citizenship^ of the en- 
tlaved. — Are American citizens enslaved legally? And without a violation of 
the American Constitution ? 



b AMERICAN CONSTITUTIONAL LAW. 

and morality or against them ? Is it a government in kc-' 
cordance with the Divine will or against it ? 

These questions are propounded, not in respect to any, or 
to all the successive administrations of the national govern- 
ment, but in regard to its original organic structure — its 
inherent nature and character — its Constitutional Law 

Is the Constitution 01 the United States, rightly expound- 
ed, in favor of liberty or against it ? In favor of slavery or 
against it ? Does it " secure liberty" and accordingly pro- 
hibit its opposite — slavery? Or does it rest upon a "com- 
promise" with slavery, or a " guaranty" of slavery, and 
therefore " compromise" the question of liberty, or " guar- 
anty" its downfall ? 

In other words, is the Constitution of the United States. 
in truth and reality, what it professes, in its Preamble, to 
be — or is it, at bottom, the very opposite of its high profes- 
sions ? Is it a delusion — a deception— a fiction — a sham ? 
Should the friends of liberty, of human nature, and of the 
loving Father of human nature, cling to, and cherish it? 
Should they labor to disabuse it, and wield it, for its pro- 
fessed and its real ends ? — Or on the other hand, should 
they abandon all hope from that quarter ? Should they ex- 
pect from it, (faithfully administered, and in accordance 
with its true character,) no desirable union, no establishment 
of justice, no assurance of domestic tranquility, no provision 
for the common defence, no promotion of the general wel- 
fare, no guaranty of the blessings of liberty. to themselves 
and their posterity ? Is it incapable of securing those " in- 
alienable rights, life, liberty, and the pursuit of happiness" — 
for the securing of which, governments are instituted among- 
men, deriving their just powers (under God) "from the con- 
sent of the governed?" Are its powers too " limited" *to 
"secure" those rights ? Does it " compromise" and has it 
therefore " become destructive of these ends?" And is it 
accordingly, "the right of the people to alter or to abolish 
it, and to institute a new government, laying its foundation 
on such principles, and organizing its powers in such form, 
as to them shall seem most likely to effect their safety and 
happiness?" Is the right of revolution our only avenue to 
the security of all those other rights which our forefathers 
sought to secure and perpetuate, when in their enterprise of 
founding a new government, they " appealed to the Supreme 
Judge of the world for the rectitude of their intentions" and 
" mutually pledged to each other, their lives, their fortunes, 
and their sacred honor?" 



CHAP. I. THE QUESTION AT ISSUE. \fi 

Impossibility of Evasion. 

The point and significancy of these questions are not to 
be evaded or turned aside, by the customary references made 
to the peculiar structure of our government— the limitations 
of the Federal authority — the unimpaired sovereignty of the 
several States — the alleged " compromises" or " guaran- 
ties" essential to the adoption of the Federal Constitution, 
in the first place, or to a continuance of the Union cemented 
by it, now On all these points, and on all others of the 
same complexion, the persons who bring them forward may 
make such statements as they may think proper — may adopt 
such theories as they may prefer, and for the argument's 
sake, (so far as the positions of this chapter are concerned) 
we may admit either one, or another, or all, of those state- 
ments and theories to be correct — without changing or mod- 
ifying, in the slightest degree, the issue we have made up, 
and presented. Such considerations can not change or avert 
the issue, though they may help to decide it. 

The question is, whether the structure of our National 
Government, (whatever it may be, in detail, and whatever 
circumstances may have shaped it) is such, inmatter of fact, 
as to enable it to "secure liberty" and repress despotism? 
Whether it can protect human rights, and prevent violations 
of them ? — Whether it is competent to do the things promised 
to the People, and to posterity, in its Preamble? Or whe- 
ther, from any cause, it is so "limited" — "balanced" — 
" compromised," " guarantied," crippled, forestalled, fet- 
tered, thumb-screwed, and gagged, that it can do nothi?tg 
of the kind? 

Is it, what it professes to be, a civil government, empow- 
ered to " establish justice" (to "execute judgment between 
a man and his neighbor") " to ensure domestic tranquility, 
provide for the common defence, and secure the blessings, 
of liberty to ourselves, and our posterity ?" Or on the other 
hand, was there a mistake made, in supposing that the pro- 
visions of the Constitution in detail, were such as to permit 
and enable the Government to accomplish these high ends? 

It has, somehow, come to pass that the people of the 
twenty-six States constitute one nation — and are bound up, 
in one and the same destiny. This is the admitted fact. It 
is claimed, too, that the Federal Constitution contains a de- 
scription of the arrangements by which they are thus bound. 
What are those arrangements ? Do they describe a civil 
government? Or only a confederacy ? Or a treaty between 
disunited States ? If they describe (as will be conceded by 



10 AMERICAN CONSTITUTIONAL LAW. 

most men) a civil government over United States — what is 
that government, in the essential elements of its character ? 
Is it a free government or a despotism ? Is it in favor of 
liberty or of slavery ? — Both, or neither, it can not be. One 
or the other, it undoubtedly IS. 

If we have a eivil government, deserving the name, it em- 
bodies, of course, the vital elements of all valid civil gov- 
ernment. What these elements are, we shall consider as we 
proceed ; — If we have what professes to be a civil govern- 
ment, and yet lacks these vital elements, it is high time we 
had detected the cheat. We pay enough for the support of it, 
to feel ourselves entitled to the benefits it has promised us. 
If it can not yield them, let us know the worst of the case, 
and either get along without having our work done at such 
vast expense, or get better help, for our money. 

The more successful any persons may be, in making it 
appear a plain case that the peculiar structure of our Go- 
vernment, the limitations of the Federal authority, the un- 
impaired sovereignty of the States, the guaranties or the 
compromises of the Constitution, the implied understanding 
of the contracting parties, or any thing else, has put it out of 
the power of the National Government to " establish justice ," 
"secure the blessings of liberty,'* (including of course, the 
suppression of injustice, and of tyranny,) the more successful 
of course, they will be, in proving that the experiment of 
liberty, under our present Constitution, is a failure, that its 
place must be supplied by a better, or that civil and religious 
liberty must- be relinquished. Such a construction of the 
Constitution loads it with a millstone that must sink it: — and 
sink the American People with it, unless they speedily cut 
themselves loose from it. 

To say as some do, that the National Government, in its 
organic structure, is neutral on the question of liberty or 
slavery, is directly to contradict its express professions. It 
is moreover a statement of that which is impossible in the 
nature of things. But were the statement never so correct, 
such a fact would decide the question that the Constitution 
and the National Government are worthless, unable to fulfil 
their high promises, or do otherwise than disappoint the ex- 
pectations based upon them. 

To represent, as do others, that the Constitution is partly 
in favor of liberty, and partly in favor of slavery, is to re^ 
present that it is a house divided against itself which can not 
stand. To say that it is in favor of general liberty and par* 
tial bondage, is to say that it is in favor of a known impossi- 



CHAP. I. — THE QUESTION AT ISSUE. 11 

bility, that can never be atttained. To say that it can secure 
general liberty ', and at the same time guaranty local slavery, 
or even compromise or permit its existence, is to affirm the 
greatest of moral absurdities, to deny self-evident truths, to 
falsify human history, to libel the unity of human nature, to 
profess a disbelief of the first axioms of political science — 
the connection between moral cause and effect: — It is to 
insult the common sense and moral perceptions of an intel- 
ligent and free People. 

Testimony of American Statesmen. 

In unison with these statements, and with the implication 
that the power of the National Government, (if it has any) 
to " secure the blessings of liberty" is, of necessity, the 
power to abolish slavery, we cite a few extracts from the 
writings of eminent American statesmen. 

Thomas Jefferson. — "And can the liberties of a nation be thought secvre 
when we have removed their only firm basis, a conviction in the minds of the 
people that these liberties are the gift of God? That Ihey are not to be violated, 
but with his wrath ? Indeed, I tremble for my country when I reflect that 'God is 
just, that his justice can not sleep forever.' " 
."When the measure of their tears shall be full— when their tears shall 
> have involved heaven itself in darkness— doubtless a God of justice will awaken 
to their distress,, and by diffusing a light and liberality among their oppressors, 
or, at length, by his exterminating thunder, manifest his attention to the things 
of this world, and that they are not left to the guidance of a blind fatality."— 
Notes on Virginia. 

In the same connection, Mr. Jefferson describes the 
whole commerce between master and slave to be "the most 
unremitting despotism on the one part and degrading sub- 
missions on the other" — and affirms that the child of a slave- 
holding parent — " nursed, educated, and daily exercised in 
tyranny, can not but be stamped by it with odious peculiar- 
ities." — Can these " educated tyrants" understand and guard 
civil liberty ? Can they be the rulers of a free People? 

William Pinckney. — " For my own part, 1 have no hope that the stream of 
general liberty will flow forever, unpolluted, through the mire of partial bon- 
■ dage, or that those who have been habituated to lord it over others, will not, in 
time, become base enough to let others lord it over them. If they resist, it will 
be the struggle of pride and selfishness, not of principle."— Speech in the Mary- 
land House of Delegates, 1789. 

John Jay.—" Till America comes into this measure [the abolition of slavery] 
her prayers to Heaven" (i. e. for liberty) " will be impious. This is a strong ex- 
pression, but it is just."—" I believe God governs the world, and I believe it to 
be a maxim in his, as in our court, that he who asks for justice must do it."— 
Letter from Spain, 1780- 

The doctrine of Jefferson, of Jay, and of Pinckney, is ev- 
idently this : — Liberty can not be secure in a country where 
there is slavery : — they are opposites and can not harmonize. 



12 AMERICAN CONSTITUTIONAL LAW. 

One or the other must give place to its antagonist. God 
will not give liberty to a people who permit slavery. 

If it be said, of any government, that it can not abolish slave- 
ry, in the country over which it is established, the meaning 
of the statement, if it have any intelligible meaning,' must 
be, that such government can not " secure the blessings of 
liberty" to the country over which it is established. If the 
abolition of slavery be left wholly to " moral suasion," then 
the preservation of liberty is left wholly to moral suasion, 
and the functions of civil government cease. No arrange- 
ments, influences, or machinery of any kind, can do more to 
diffuse light, than they can to dispel darkness ■ to secure 
warmth, than to prevent cold ; to " secure liberty," than to 
abolish slavery s Can any truisms be more self-evident than 
these? 

If the whole question of slavery is left, exclusively, to the 
State Governments, then the whole question of liberty is left 
exclusively to the State Governments, and the National Gov- 
ernment becomes a mere nose of wax — the fifth wheel to 
the coach, a nullity by which no man can be bound. 

Further testimony might be cited, from prominent states- 
men and literary gentlemen, by no means obnoxious to the 
charge of prejudice against slavery, or under zeal for its 
abolition. Speeches in Congress, and in State Conventions, 
Governors' Messages, Resolutions of State Legislatures, &c, 
&c, abound in varied expressions and implications of the 
sentiment that the continuance of slavery involves its virtual- 
extension, in some form, over the mass of the laboring popu- 
lation of the country at large. In the same connection with 
arguments for the perpetuity of slavery, and demands for 
the suppression of efforts for its overthrow, it has been urged, 
from these high sources, that " those who earn their daily 
bread by the sweat of their brows can never enter into po- 
litical affairs,"* that " the relation between the capitalist 
and the laborer, in the South is kinder and more productive 
of genuine attachment, than exists between the same classes, 
any where else on the globe,"! that " gentlemen" (Repre- 
sentatives in Congress) " from the North, must not start at 
this truth," that " one class" of citizens must practically and 
substantially own another class, in some shape or form"t 
— that while the non-slaveholding States " it is hoped" will 
be prompt to suppress " Anti-Slavery Societies" — " thesobei 
and considerate portion of the citizens of the non-slavehold- 

* Benjamin Watldns Leigh, Speech in Virginia Convention for amending the 
Constitution, 1829.— f Prof. Dew, of William and Mary's College, Va— \ Hon. 
Mr. Pickens, Speech in Congress, Jan. 1836. 



■i CHAP. I. THE QUESTION AT ISSUE. 13 

ing States will reflect whether the form in which slavery- 
exists in the South, is not one modification of the universal 
condition of laborers," who " with few exceptions," have as 
little " volition or agency in the distribution of wealth" as 
the slaves of the South— that the system of labor among 
freemen, is " not less oppressive" than that among slaves* — 
that " the South has less trouble with their slaves, than the 
North has with her free laborers"! — that where menial ser- 
vices " are performed, by members of the political commu- 
nity, a dangerous element is introduced into the body poli- 
tic" — that the slaves if emancipated " bleached or un- 
bleached" — and admitted to "an equal participation of our 
political privileges" would exhibit " a revolting spectacle" — 
that "slavery supersedes fhe necessity of an order of nobi- 
lity" — and is " the corner stone of our republican edifice" — 
that "it will be fortunate for the non-slaveholding States, if 
they, are not, in less than a quarter of a century, driven to 
the adoption of a similar institution, or take refuge from 
robbery and anarchy, under a military despotism,"! — that 
the abolition of slavery, "gradual or immediate" is rendered 
impossible by "the absolute want of power on the part of the 
General Government" and by "the immense amount of 
capital which is invested in slave properly" — that the "dog- 
ma" is " visionary — which holds that negro slaves can not 
be the subject of property" — that " that is property which 
the law declares to be property" — that " two hundred years 
have sanctioned and sanctified negro slaves to be property" 
— that " the moment the incontestible fact is admitted that 
negro slaves are property, the law of moveable property 
attaches itself to them, and secures the right of carrying 
them from one State to another, where they are recognized 
as property" — that "the consequences of abolishing slavery, 
were the measure possible, would be such that abolitionists 
themselves would shrink back in dismay and horror" from 
them — that " in the progress of time, someone hundred and 
fifty or two hundred years hence, but few vestiges of the 
BLACK race will remain, among OUR posterity "II so that 
the interminable slavery, so long " sanctioned and sancti- 
fied" — so " incontestibly" identified with the right of " move- 
able property," thus securing perpetuity to the domestic 
slave trade, and with the whole North, (under the law of 
'93) as its hunting ground, without jury trial, — a slavery 

*Hon. John C. Calhoun's Mail Report, U. S. Senate, Feb, 1836, and accepted by 
that body. — f Mr. Hammond, of South Carolina, Speech in Congress. — {Message 
of Gov. McDuffie to the Legislature of South Carolina, and approved and acted 
upon by that body.— 1| Speech of Hon. Henry Clay, in the U. S. Senate, Feb. 7, 
1839. 



14 AMERICAN CONSTITUTIONAL LAW. 

and a slave-trade which the General Government has no 
power to terminate — and which none of the State Legisla- 
tures, (by the late decision of the Supreme Court of the 
United States)* has a right to exclude from the field of 
their jurisdiction — is a slavery and a slave-trade to be per- 
petuated "AMONG OUR POSTERITY"— "with but 
FEW VESTIGES of the black race" remaining ! 
No Middle Ground. 

Let the assumed premises of Mr. Clay be conceded to him, 
(viz:) the right of property in man, under American Consti- 
tutional Law — the legality of slavery in America, including 
the inter State slave-trade under the Constitution of the 
United States, and the " absolute want of power on the part 
of the General Government" to abolish this American slave- 
ry and slave-trade, and all the rest of his argument, with its 
tremendous conclusion, follows of course, unless a ray of 
hope might reach us from the good will and pleasure o'f the 
legislatures of the slave States themselves. t 

Not less logical and demonstrative are the conclusions of 
Gov. McDuftie's Message, paradoxical and extravagant as 
they may seem, unless we start, in the outset of the argu- 
ment, upon the opposite principle, and affirm that American 
Constitutional Law regards " all men" "bleached or unreach- 
ed" as "created equal, and endowed by their Creator with 
certain inalienable rights — life, liberty and the pursuit of 
happiness." — On another assumption, it is manifest that 
our Government regards men as unequal: and if this be 
true, it is evident that condition and not color, (according to 
both Clay and McDuffie,) must ultimately become the sole 
distinction between the privileged and the servile. 

Every government is based upon some principle — is based 
upon either one or the other of two principles — the principle 
of human equality; or the principle of human inequality, of 
domination and subjection. If the American Government is 

* Decision in the case of Prigg vs. the State of Pennsylvania. 

t It seems not quite certain that a little variation and extension of the same 
argument would not almost equally remove from the legislatures of the slave 
States themselves, the power of abolishing slavery — a position not unfrequently 
held, at the South.— The " incontestible" right of " moveable property" so long 
" sanctioned and sanctified" would present very grave claims, in the eyes of 
statesmen who hold the views of Mr. Clay. And then, if the Constitution of the 
United States, " the supreme law of the.land"— " guaranties" that same right 
of property, and may ride, rough shod, over the legislatures of the non-slave- 
holding States, and convert the whole North into the hunting ground of the 
slaveholder, to make that "guaranty" good, how will it be made to appear 
that the same " guaranty" doesnot extend over all the States in the Union, and 
forbid Southern legislatures to do what Northern legislatures may not ? Sup- 
poso^VIaryland should pass an act abolishing slavery —Would not the same de- 
cision of the United States Court, that now prevents Pennsylvania, from execu- 
ting its act of abolition, prevent Maryland, likewise, from doing the same thing? 



CHAP, I. THE QUESTION AT ISSUE. 15 

not based upon rhe principle of human equality, then it is 
based upon the principle of human inequality ; and the de- 
gradation of the laboring masses, whom color can not iden- 
tify, becomes, (as McDuffie hath it,) the corner stone of the 
entire structure. Those who contend for the " guaranties" 
and the " compromises of the Constitution" in favor of slave- 
ry, or its toleration, contend (whether they know it or not) 
for the pith and essence of the very doctrine, so offensive 
to many, when stated in the bold and forcible language of 
the Governor and Legislature of South Carolina. 

Illustrative Politics of the Country — State Action. 

The meaning of the question before us, is thus definitely 
fixed. On its magnitude, the reader may reflect at his leis- 
ure. On that topic we can not enlarge. Suffice it to sug- 
gest, that both the meaning and the/nagnitude of the ques- 
tion have their amplest illustrations in the past and passing 
political history of the country at large. 

The legislative action of the slaveholding States looks, 
distinctly and marches steadily to the suppression of general 
liberty, both within their own boundaries, and throughout 
the States of the Union. 

In direct violation of their own State Constitutions, free- 
dom of speech and of the press are proscribed, and in espe- 
cial reference to all attempted promulgation of the doctrine 
of human rights ! 

In Louisiana. — '• If any person shall use any language from the bar, bench, 
stage,or pulpit, or any other place, "[including halls of legislation] " or hold any 
conversation having a tendency to promote discontent amongFREE colored peo- 
ple, or insubordination among slaves, he may be imprisoned at hard labor, not 
less than three, nor more than twenty-one years, or he may suffer DEATH at 
the discretion of the Court." 

Similar legislation obtains in Mississippi, North Carolina, 
Georgia, Virginia, &c. And these laws are not a dead let- 
ter. A member of Congress from Tennessee,* in a letter 
to a Northern Editor, requested him to send him no papers 
of a certain description, (and consisting of a Eeview of a 
Report of Mr. Calhoun, in the United States Senate,) after 
he should have returned home to his. constituents, because 
his receiving it through the mails, and reading it, at his 
family fire-side, would be a penitentiary offence. 

Legislatures and Governors of slaveholding States have 
offered large rewards for the abduction of free citizens of 
the non-slaveholding 'States, and carrying them to the South, 
to be tried and punished there, for advocating human rights, 
in their own States, and no legislature of a rion-slaveholding 

* Mr. Hunter. 



16 AMERICAN CONSTITUTIONAL LAW. 

State, has, in any way, noticed the insult ! — Demands have 
been made on the Governors of non-slaveholding States, for 
the delivery of such offenders, and also on their legislatures, 
for penal enactments against free speech at home. In di- 
rect violation of the Constitution of the United States, free 
citizens of other States, sojourning in the slave States, are 
liable, if colored, to be seized, imprisoned, and sold into 
slavery — or (whether white or colored) if maintaining the 
" self-evident truths" of the Declaration of Independence, 
to be punished with death. 

Action of the Federal Government. 

The history of the action of the Federal Government, 
under all our successive Presidents, is strikingly illustrative 
of our position, that the Constitution must either be con- 
strued against slavery, 'or in its favor — against slavery or 
against general freedom. 

To those who differ from me on this great question, I 
freely yield all the benefits of a concession of the fact that 
hitherto, the Constitution has been construed, in opposition 
to the views I maintain :— -has been construed, in favor of 
the " compromise" and the " guaranty" of domestic slavery 
• — has been thus construed by the Legislative, Executive, 
and Judicial authorities of the nation. But along with this 
concession, I shall insist that the hitherto reigning construc- 
tion, as exemplified in the steady action of the Federal Gov- 
ernment, in all its departments, is a construction that makes 
the security of slavery, and not the security of liberty, (the 
profession of the Preamble) the grand and paramount object 
of the National Government — is a construction that has led 
all the rivalstatesmen, administrations, and parties who have 
held it, to pursue steadily, amid all their otherwise conflict- 
ing measures and fluctuating policy, the aggrandizement of 
slavery at the expense of liberty; a construction that has 
led the Legislature, the Executive, and the Judiciary, to do 
the bidding of the slave power, at whatever expense, or 
hazard, to the interests, the reputation, or the liberties of 
the People. 

For the jfactfs involved in this declaration, it were sufficient 
to cite the reader to — " A View of the Action of the Federal 
Government, in behalf of Slavery, by William Jay," and to 
those new developments of the same action, which, every 
year, and almost every month, are opening before our eyes, 
For a philosophical solution of those phenomena, it is enough 
to bear in mind the construction of the Federal Constitution 



CHAP. I. THE QUESTION AT ISSUE. 17 

that looks in the very same direction, and to consider that 
those who think the Constitution to be in favor of slavery, 
will be very likely to administer it in favor of slavery, what- 
ever may be said against the justice or the policy of their 
measures. If the common construction be the correct one, 
we have no remedy for the policy of the last half century, 
but a different Constitution, or an administration that will 
disregard the provisions of the existing one ; a consideration 
to which our attention has not unfrequently been called by 
those who object to the ballot box as a means of removing 
slavery. 

Admitting the common construction to be correct, submis- 
sion or revolution are the only alternatives left to us ; and 
both in turn are the probable, the almost inevitable lot of 
this People. The total loss of our liberties will come first, 
and the bloody recovery of them afterwards. Our destiny 
is before us, and we must float on, till it is fulfilled. Be it 
so, that we live under a National Government, at war with 
our dearest rights, a Government that taxes us for the ac- 
quisition of new territory, whereon to plant new batteries 
against our liberties — that moulds our naturalization laws in 
the manner best adapted to enslave native freemen — that 
shapes its ever fluctuating political economy, so as may best, 
for the time being, divert the avails of free labor from the 
laborer to the lordling — that employs the expensive diplo- 
macy of the nation to its own infamy — that pretends to pro- 
hibit the African slave-trade, but winks at its successful 
prosecution — that plots against the liberties of South Amer- 
ica and of Cuba, lest the infection of their liberty should 
enable the North American States to become truly free — 
that with indecent eagerness hastens to take by the hand, 
and hug to its bosom, nay, to incorporate with itself, the 
piratical despotism of Texas, at the cost of a war with Mex- 
ico; while it refuses, for forty years, at a sacrifice of well 
known public benefits, to recognize the independence of lib- 
erated Hayti — that authorizes slavery, the slave-trade, and 
the public, sale of freemen, on the national hearth-stone, the 
home and the habitation of its own " exclusive" jurisdiction 
— that defines the condition of the American slave, by deny- 
ing to him even the Asiatic right of petition, then declares 
that right forfeited by all the believers in inalienable human 
rights, and next to be held by the entire American people, 
•only by Presidential permission — that by its law of 1793, 
for the arrest of alleged fugitives from slavery, annuls the 
trial by jurv, and (by recent decision of its Supreme Court) 

2 



18 AMERICAN CONSTITUTIONAL LAW. 

suspends the freedom or the chattelhood of its Supreme 
Judges themselves, not upon " due process of law," but 
upon the good pleasure of the slaveholder that may choose 
to claim them as slaves. Be it so that all this decisive and 
even fatal action against general liberty, is the action of our 
own National Govornment in which we have confided, to 
"secure the blessings of liberty" — what then ? If the founda- 
tion principles of the Federal Government require all this 
to be done, as they undoubtedly do, if " the Constitution 
guaranties slavery" — or if they permit all this to be done, as 
they certainly do, if, by a " compromise they permit slave- 
ry — then we have either to get rid of such a Federal Gov- 
ernment, or relinquish our liberties. 

The wit of man may be challenged to devise another al- 
ternative. American Constitutional Law is either against 
slavery or in favor of it. Both at the same time or neither, 
it can not be. One or the other it is, and must be. If it 
tolerates partial slavery, it betrays and sacrifices general 
freedom; — for general freedom and partial slavery, can no 
longer, even dubiously, contest the supremacy. At this very 
moment, liberty trembles, and is ready to fall, if she maybe 
said even now to exist. Under the present Constitution, is 
there any hope for her? We proceed to the discussion of 
THAT QUESTION. 



CHAPTER II. 

« STRICT CONSTRUCTION." 

The Constitution of 17S7-9. Considered on the Principle 
of Strict Construction. 

SECTION I. 

THE CLAIMS OF SLAVERY. 

Modern date of the supposed compromise— Remarkable process proving 
it— Strict construction defined—" Persons held to service and labor"— Appor- 
tionment of representatives and direct taxes— Migration and importation — 
Suppression of insurrection— Protection against domestic violence — Reserved 
rights of the States. 

THE CLAIM — ITS CHRONOLOGY ITS TEXTURE AND ITS TACTICS. 

Those who claim the "compromises" and the "guaranties" 
of the Constitution in support of slavery, do so on the ground 
of the provisions of the Constitution of the United States, 
formed by a Convention held for that purpose, in 1787, rat- 



CHAP. II. — STRICT CONSTRUCTION, 19 

ified by the requisite proportion of the States, in 1787-8, 
•and going into operation by the organization of the present 
Federal Government under it, in 1789. And this claim is 
seldom made out, from the provisions of that instrument it- 
self, to the satisfaction of the claimants themselves, without 
lugging in, what is claimed to be the u implied understand- 
ing" of the supposed parties to the "compact" — an under- 
standing, without which it is assumed, the assent of the 
slave States io the Constitution, could not have been gained. 

But beyond the Constitution of 1787-9 and the attendant 
circumstances of its formation and adoption, the claimants 
are not accustomed to adventure. We have never heard 
the old Articles of Confederation cited in proof that any such 
compact, compromise, guaranty, or understanding, lay at the 
bottom of that arrangement, or even existed, at that date, in 
any form. The Declaration of Independence, the principles 
of Common Law, the inherent, matter-of-fact, unwritten 
Constitution, the organic frame-work and structure of free 
government, itself, of civil government, of any sort, have 
never, so far as we know, been attempted to be pressed into 
the service of the " peculiar institution" of the South. No- 
thing of this. Its Magna Charta of Kunny Meade, its Gen- 
esis, so far as any national "compact" — "compromise"; — 
"guaranty," or " understanding" are concerned, claims no 
earlier date than 1787-9. 

It is a matter of some importance to note distinctly, this 
fact, as it shows to how narrow a chronological field, the 
claim in question, is confined. We became an independent 
nation — one nation — " United States" in 1776, but no man 
claims any national compact, compromise, guaranty, or un- 
derstanding, in favor of slavery, till 1787-9. 

Another remarkable feature of this claim, is its inability 
to sh^pe itself into any tolerable conformity with even its 
own heau ideal, or model of a seemly or valid claim, by the 
process of a consistent and continued adherence to any re- 
cognized principle of interpretation by which., on all other 
questions, the meaning of this national document, in partic- 
ular, or of any other similar instrument, is supposed to be 
ascertainable. 

The claimants of these "compromises, compacts,, guaran- 
ties, and understandings," never think of making out their 
claim by taking the well known rule of strict construction, 
and adhering to that rule, till the claim is logically proved. 
Nor, on the other hand, will they venture the experiment of 
taking the rival principle of interpretation according to the 
scope, design, leading object, or " spirit of the Constitution" 



20 AMERICAN CONSTITUTIONAL LAW. 

and making- out their claim in harmonious accordance with 
that principle. 

Instead of this, they never fail to present an argument made 
up of a motley patch-work, of which "strict construction" is 
claimed to have furnished some of the shreds, too tattered 
and thin indeed to hang together, or shut out the sunlight, 
without a plentiful lining of supposed intentions, yet carefully 
excluding the grand intention to "secure liberty'''' from com- 
ing into the interpretation, lest " that which is put in, to fill 
it up, take from the garment, and the rent be made worse. " 
The argument commonly begins by insisting that the mi- 
nutest specifications of the document shall be strictly and lit- 
erally complied with, that not one iota or tittle of the detail- 
ed provisions of the Constitution shall be suffered to fail, 
though the known and openly avowed end and object, the 
main purpose, and spirit of the instrument, which gave it 
existence, should be nullified, should suffer defeat, and be 
relinquished. But in order to make out the needed construc- 
tion of the specific provision itself, in the absence of the ap- 
propriate words and phrases to express the pretended "com- 
pact, compromise, and guaranty"— (yes ! — in the presence 
of words positively adverse in their strict, literal import, to 
any expression of that kind,) resort is instantly had to suppos- 
ed intentions and " understandings" to eke out the construc- 
tion ! The declared intent to "secure liberty " shall have 
no power to help construe, to qualify, much less to set aside 
a technicality that can be read, by the literal import, to favor 
the " peculiar institution" of slavery. The dead-letter con- 
struction shall be held omnipotent here. But let it be shown 
that the " words of the bond" do not happen, exactly to spe- 
cify, to describe, much less toname the very " peculiar" thing 
c'aimed to be guarantied or compromised, behold ! the dead- 
letter construction is repudiated, at once, and supposed and 
conjectural intentions to secure slavery start up in its place* 
and become Constitutional Law !* 

A Standing Point, and an Umpire. 

Against this backing and filling, this fluctuating, sliding 
process of constitutional interpretation, we record our pro- 
test, in the outset. The " peculiar" claim, with all the 

* When it is remembered that our most popular " expounders of the Constitu- 
tion" have been accustomed to reason in this manner— That Presidents' Mes- 
sages, Acts of Congress and Judicial decisions have been framed upon the fra- 
gile basis of such adroit and nimble gyrations, dignified with the name of expo- 
sitions and palmed off upon a confiding people for Constitutional Law, Ave may 
safely infer that a true exposition of the Constitution, whatever it may be ; must 
conflict with the now prevalent one —Mr. Clay's Speech tn the Senate, Pinck- 
ney's, Patton's and Calhoun's Reports, the Act of 1793, and the late decision of 
the Supreme Court, furnish instances in abundance of these deceptive manceu- 
rres. 



CHAP. II, — STRICT CONSTRUCTION. 21 

amiabilities and attractives attached to it, shall have its fair 
hearing, in Court, Certainly it shall. But, like afll other 
claimants, it must define its position, and retain it, long 
enough to have its merits properly canvassed and adjudicat- 
ed. It may choose the " spirit of the Constitution" as a rule 
of interpretation, or the rule of " strict construction" as it 
judges most prudent. But, having made its own selection, 
it must content itself to remain in the same Courts till the 
verdict is rendered. Even more than all this, we shall con- 
cede to it : for the truth can afford to be liberal. The claim 
of constitutional slavery shall have leave to urge its merits 
upon both the principles of interpretation, " strict construc- 
tion," first, and " spirit of the Constitution" afterwards, not 
flying from the one to the other in the same plea, but trying 
its cause in both Courts, in succession. If the claim can be 
sustained, on the principle of " strict construction" alone, let 
it have the benefit of the verdict. But if it finds itself de- 
feated on that ground then let it appeal to the u spirit of the 
Constitution" and see whether it can get the judgment re- 
versed. But let it not pack its jury from both Courts, at 
the same trial. Nothing can be fairer than this challenge. 
On this basis we proceed. And as the claimants always 
commence their suit, at the Court of " strict construction" we 
will meet them there first. Let them not dodge, till "strict 
construction" shall have pronounced judgment. They may 
then file their appeal, if they shall have occasion. 

" Persons held to Service and Labor." 

:r No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor ; but shall be delivered up on claim 
of the party to whom such service or labor may be due. — Constitution, Art. IV. 
Seetion 2, Clause 3. 

Who, unacquainted with the facts that have taken place, 
with the past and daily passing history of this country, 
would ever have conceived that these words described the 
case of a fugitive slave, and required his delivery to the 
slaveholder? No one! Yet such is the claim set up, un- 
der this clause ! But " strict construction" allows no re- 
ference to past or passing events, for a key to the meaning 
of the document. It insists that the words of the instrument, 
the literal words, according to their commonly received and 
authorized import, and nothing but the words shall be allow- 
ed to tell us the meaning of the Constitution. It rules the 
Historian and the News Journalist out of the witness-box, 
and installstl.fi Grammarian and the Lexicographer in their 
stead. To their testimony we will now attend. 

Mr. Grammarian— Please to "parse* for the Court and 



22 AMERICAN CONSTITUTIONAL LAW. 

Jury, this third clause of the second section of the fourth 
article of the Constitution of the United States. And tell 
us by the rules of grammar, who it is, that "shall be deliv- 
ered up, 11 &c, under this clause. 

Mr. Grammarian parses the sentence, and thus gravely 
responds — " According to the principles of grammar as 
taught by Murray, Smith, Kirkham, &c, it appears that — 
M No person held to service or labor in one State, under the 
laws thereof, escaping into another * * * * * shall 
be delivered up on claim of the party to whom such service 
or labor may be due !"* 

Very satisfactory testimony, for the claimant, to be sure, 
but "strict construction" records the testimony of Mr. Gram- 
marian, nevertheless! As counsel for the fugitive, I can 
afford to pass it over in my plea. I have evidence enough 
without it, but on the principles of " strict construction" I 
have a right to use it, if I please. Why not? — By bringing 
his suit into the Court of "strict construction" the claim- 
ant insists that the Grammar and the Lexicon, the dead- 
letter of the record, however subversive of equity, or of the 
meaning intended by the framers of the instrument, shall 
govern the decision to be made. Why then, may I not take 
him at his word? 

We will dismiss the Grammarian, and summon the Lex- 
icographer to the stand. We wish to know the meaning of 
the words employed in this clause. The enslaver claims 
that the word "person" means slave. To test this claim we 
must know the meaning of the word " person" and the 
meaning of the word "slave" and see how they correspond. 
Noah Webster knows the meaning of words. — Mr. Webster 
— what is the meaning of the word "person?" Please to 
define it for the Court and Jury. 

Answer. — " Person. An individual human being, con- 
sisting of body and soul. A man, woman, or child, consid- 
ered as opposed to things, or distinct from them." — Webster's 
Dictionary. 

The testimony is noted down by the Court. — Mr. Webster 
retires. — "The peculiar" meaning of the word slave, as un- 
derstood by those who " best understand" the very "pecu- 
liar" thing, must next be ascertained. No non-slaveholding 
Lexicographer (more than a non-slaveholding President) is 
to be trusted, here. A Yankee Dictionary may best define 
the meaning of the word " person." We must look further 
South for a full and clear definition of the word " slave." — 
_ . , _ -<* 

* This extraordinary syntax of the clause is noticed by Alvan Stewart, Esq. 
in his able argument, (vide '* Liberty Press," June 4, 1844») 



CHAP. II. — STRICT CONSTRUCTION. 23 

The claimant has a witness in Court. Having come to 
claim a slave, he has brought with him the slave code of 
the State from which the slave has "escaped" in order to 
inform the Court, precisely, what it is — " unawr the laws 
thereof" that is claimed. The Court directs the witness to 
be sworn. He is " a southern man with southern princi- 
ples." In every thing relating to the " peculiar institution" 
he is erudite, authoritative, and "sound to the core." And 
moreover, though a southern man, he is a " white m&rx," a.n& 
without a tinge of African blood: — a competent witness of 
course. He must be heard with "peculiar" respect. The 
Sheriff and Constables will preserve "silence in Court," 
while he testifies — Hush ! 

"Slaves shall be deemed, sold, taken, reputed, and adjudged in law, to 
be CHATTELS PERSONAL, in the hands of their owners and posses- 
sors, and their executors, administrators and assigns, to all intents, con- 
structions and purposes whatsoever. — Law of South Carolina. 2 Brev. Dig. 
229; Prince's Digest, 446, #c. 

" In case the personal property of a ward shall consist of specific AR- 
TICLES, such as slaves, working- beasts, animals of any kind, stock, fur- 
niture, plates, books, and so forth, * * * * the Court may at any time, 
pass an order for the sale thereof." — Act of Maryland, 1798, Chap. ci. fyc. 

**Jlaves shall always be considered and reputed real estate." — Louisiana, 
Act of January, 1806. 

'« In Kentucky by the law of descents, they are considered real estate," 
but " are liable'AS CHATTELS, to be sold by the master, at his pleasure, 
and may be taken in execution for the payment of his debts.'-" — 2Litt. and 
Sni. Digest. 

" The cardinal principle of slavery, that the slave is NOT to be ranked 
among sentient beings, but among THINGS, as an article of property, a 
chattel personal, obtains as undoubted law, in all of these States." — 
Stroud, page 23. 

" It is plain that the dominion of the master is as unlimited as that 
which is tolerated by the laws of any civilzed country, in relation to 
brute animals, to quadrupeds, to use the words of the civil law." — Stroud, 
page 24. . 

" Slaves can make no contract" — "A slave can not even contract matri- 
mony."— Stroud, page 61. 

"Two hundred years have sanctified negro slaves as property" — "That 
is property which the law makes property" — (i The moment the incon- 
testible fact is admitted that negro slaves are property, the law of movea- 
ble property attaches itself to them, and secures the right of carrying them 
from one State to another, where they are recognized as property." — 
Speech of Henry Clay in the United States Senate, February 7, 1839. 

"The undersigned feels assured that it will be only necessary to refer 
Lord Palmerston to the provisions of the Constitution of the United 
States, and the laws of many of the States, to satisfy him of the existence 
of slavery, and that slaves are there regarded and protected as property, 
that by these laws there is in fact no distinction in principle between pro. 
perty in persons and property in things; and that the Government has more 
than once in the most solemn manner determined that slaves killedin the ser- 
vice of the United States, even in a state of war, were to be regarded as 
property, and not as persons ; and the Government held reponsible for 
their value."— Mr. Stevenson to Lord Palmerston. 

This testimony too, is taken down by the Court, and 
"strict construction" wipes its spectacles for the compar- 
ison. How reads the record ? " We b*ve it in evidence 
that the word ; person' denotes a human being, a nran, wo- 



24 AMERICAN CONSTITUTIONAL LAW. 

man, or child, considered as opposed to THINGS, and dis~ 
tinct from them. We have it in evidence, likewise, that the 
word ' slave* means a 'chattel personal, A THING, and not a 
sentient bAng. The testimony, then, is, that a ' person'' can 
not be a thing ; and that a ''slave' is a thing. The word 
' person' in the Constitution, therefore, can not mean a slave. 
The claimant, by proving the being claimed, under this 
clause, to be a slave, has proved that he is not a person, and 
therefore can not be recovered under this clause." So 
reasons " strict construction" arid prepares to render judg- 
ment, without further waste of time. By joint request of 
both the parties, the Court consents, however, to a consid- 
eration of other matters, before pronouncing a decision. 

Waiving the syntactical suicide of the clause under re- 
view, and passing from the definition of the words " person" 
and " slave." we take up the clause again, and read it over 
carefully, to discover, if we can, what impression it conveys, 
as a whole, of the condition of the being or " person" it de- 
scribes. And the result is, first, that the condition of a slave 
is not therein described ; second, that a certain condition, 
familiarly known among us, is described ; and third, that 
the condition thus described, is the condition of one who by 
the description, can not possibly be, or could not have been a 
slave. 

First : — The condition of the slave is not described at ail, 
in the clause. The appropriate English word, slave, univer- 
sally used, especially in this country, to express that condi- 
tion, is carefully excluded I How is this, if the design was 
to specify and io describe that " peculiar" condition ? The 
phrase " held to service or labor" does not describe the 
legal condition of the slave. He is held as " property,'''' 
goods and chattels personal;" but the law knows nothing, 
and has nothing to say or to prescribe, concerning his ser- 
vice or uselessness, concerning his labor or his idleness. 
The highest prized slaves, those commanding incomparably 
the largest sums of money in the market, are " held," 
bought and sold for other purposes than labor, purposes 
altogether incompatible with it ! " Escaping" is an awkward 
word at best, to be applied to property, to a chattel, to a 
thing. Self locomotive property may be described as 
" straying," but not as " escaping" from its owner. " Dis- 
charged from service or labor" is a phrase never used to 
describe either the manumission of a slave, or his release 
from labor. The phrase supposes a legal obligation to labor 
which can not rest on the slave. The laio requires no labor 
of him, whatever his master may do. There ?.re sometimes 



CHAP. II. STRICT CONSTRUCTION. 25 

laws ostensibly limiting the amount of labor to be imposed 
upon slaves,* as there are laws to prohibit the abusive^ treat- 
ment of cattle, but such laws never speak of their " dis- 
charge" from any portion of their labor. If such ltws should 
go so far as to forbid, in certain specific cases, the putting of 
any labor upon aged, decrepit, or diseased slaves, the prohi- 
bition would be no emancipation, n^r would it be called a 
41 discharge from labor." " On claim of the party to whom 
such service or labor may be due.'''' — Nothing can be legally 
due frcm a slave to his master: from "goods and chattels 
personal" to their " owners and possessors." " The slave 
can make no contract," and hence, nothing can be ' ; due 1 * 
froui him. Master and slave can not be creditor and debtor. 
The owner has no legal " claim" upon his .beast for labor. 
He can not " sue him at the law" for default of "service," 
nor can the law enforce the payment, or " discharge" from 
it. All such language is inapplicable to the condition of 
the slave. If the slave master has proved the estray "chattel" 
to be his chattel, his slave, then he has proved, not merely 
that he is no " perso?i" but that nothing can be "due" from 
him, and that the clause of the Constitution now under re- 
view, does not apply to the case. If this clause of the Con- 
stitution "does apply to slaves, it emancipates tlum, for it 
proceeds upon the basis of self ownership in the person held 
to labor, and makes Us provisions applicable only to a debt- 
or in htw, who, in order to owe the creditor, must own him- 
self."* And this appears from a consideration of the other 
points proposed. 

Second ': — The clause does describe a condition, familiarly 
known among us : — the condition of "persons," as "distinct 
from things" — persons who are "held to service or labor 
under the laws of the State" wherein they reside — persons 
"from whom such service or labor may be dice" because 
they may have contracted to perform it, or because due to 
parents or guardians; persons whom the laws, on proper 
grounds, -may "discharge" from the labor that may be wrong- 
fully demanded of them, persons who may wish to "escape" 
from the obligations believed to be resting on them, persons 
whom the authorities of one State may appropriately "deli^ 
ver up on the claim of the party (in another State) to whom 
such service or labor may be due." Such is the condition 
of the apprentice, the minor, the contractor of job work, the 

* Tract No. 6, New England Anti-Slavery Tract Association, on " Persons 
held to Service, Fugitive blaves," &c , by Theodore D. Weld. If the reader 
wishes to see the argument exemplified, which is here briefly condensed, chiefly 
from that work, he should Tead it entire. On the " ttrict construction" princi- 
ple, its positions will not be easily overturned. 



26 AMERICAN CONSTITUTIONAL LAW. 

debtor, who is held to service or labor by the terms of his 
own voluntary agreement.* 

Third: — The condition so accurately and minutely de- 
scribed irf*the clause, is a condition which can not, by any 
possibility, be predicable of the slave, who is held as pro- 
perty, who can make no contract, who can never become a 
creditor, and from whom nothing can be "due." 

Another feature of this clause has beeu noticed by an 
eminent lawyer, (S. P. Chase, Esq. of Ohio,,) as inconsistent 
with the claim set up under it, of a right to'demand fugitive 
slaves. The provision of the Constitution in this clause, is, 
that no person shall be discharged from service and labor, 
in consequence of any law of the State into which he may have 
escaped. Now the fugitive slave is not discharged or libe- 
rated in consequence of any such law. He becomes free, the 
moment he leaves a slave State, in consequence of the fact 
that he " leaves the municipal laws of that State behind him. 
He is free by nature, and the endowment of the Creator. He 
is made a slave by law. The law which makes him a slave, 
can not follow him beyond the limits of its own territory. 
When he passes beyond those limits he resumes his free- 
dom, simply because he has got beyond the reach of the 
force which suppressed it." — [Vide Cincinnati Herald, Nov. 
6, 1844.] 

Should it be claimed, as perhaps it maybe, that in a dis- 
puted or doubtful case, the principle of "strict construction" 
does not preclude a reference to the history of the times, 
the general understanding, &c. &c, to gather light upon the 
meaning of a legal instrument, the answer is at hand. No 
references of the kind proposed, on the principle of " strict 
construction 1 (for in that Court we are litigating now) "oan 
avail to set aside the plain terms in which a clause of the 
Constitution is expressed." Aside from the faulty syntax 
of the clause first noticed, no terms could more plainly ex- 
press the condition of the "persons" specified and described ; 
a condition incompatible with that of the slave. " Strict 
construction" will not permit the supposition that the Con- 
stitution means a slave, when its framers, whatever their 
intentions might be, took such special care not to say that 
they meant it, but actually said the contrary. "Strict con- 
struction" maintains that even if "a statute, or a clause of a 

* This view of the subject is moreover confirmed and additional foTce is given 
to the idea that the peculiar condition of the slave is not described in the clause, 
when we remember that no allusion is made to the color commonly supposed 
to be the badge of the slave, and of those that may be claimed as such. This 
remark can be neutralized only by pleading that the common construction of 
the clause, embodied in the Act of 1793, and in the decision of the Supreme 
^onlt. does conterrtRUte thp «nslnvc.ijip,nt of whites '. 



CHAP. II. STRICT CONSTRUCTION. 27 

constitution, may in certain cases, be construed beyond the 
letter," it " must never be construed against the letter." 
" Strict construction" affirms that "a construction repugnant 
to the express words of the law can not hold — and further, 
that where the words are unambiguous and explicit, the 
construction must not only not conflict with it, but must be 
based upon it, and still further, that Courts are not at liberty 
to carry out what they may suppose to be the design of the 
law, to put upon its provisions a construction repugnant to 
its words, even though the consequence of not doing it 
should be defeat to the object of the law." " Strict con- 
struction" holds that "with the policy of a clause in the Con- 
stitution, Judges have nothing to do." " Strict construction" 
rules that the Court has no authority " to presume the inten- 
tions of the framers, but to collect them from the words, 
taken in their ordinary import;" and "strict construction" 
cites the authorities that follow : 

" Lord Tenterton, the late distinguished Chief Justice of the Court of 
King's Bench, in a recent judgment, says : — f Our decision may, perhaps, 
in this case, operate to defeat the object of the statute, but it is better to 
abide by this consequence than to put upon it a construction not warrant- 
ed by the act, in order to give effect to what we may suppose to be the 
intentions of the legislature.' 

" So, in the case of < Notley vs. Buck,' 8 B. and C. 164, that eminent 
Judge says: — ' The words may probably go beyond the intent" ;*■. ... 
they do, it rests with the legislature to make an alteration. The duty of 
the Court is only to construe and give effect to the provision.' " 

Imbedded in principles and precedents like these, what 
can " strict construction" do, but decide against the claim- 
ant of a fugitive slave, under the third clause of the second 
section of the fourth article of the Constitution of the United 
States? 

If it still be pleaded, in arrest of judgment, that " the 
clause is fairly open to two interpretations, and that there- 
fore resort must be had to history, to contemporaneous ex- 
position," &c. &c, the plea is inadmissible here, because 
it is in effect a motion to take the case out of the Court of 
" strict construction" and try it at that other Court to which 
the claimant will be allowed an appeal, if defeated here. 
But inasmuch as other important questions touching the 
"peculiar institution" and its claims on other portions of 
the Constitution my about to be litigated in this Court, the 
judgment in this particular case will be suspended, for fur- 
ther deliberation. 



28 american constitutional law. 

Apportionment, of Representatives and Direct Taxes. 

"Representatives and direct taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three-fifths of all other 
persons," 5 &c. — V. S. Const. Art. T. Sect. 2. Clause?). 

And who, among the uninitiated, could have divined that 
either a " compromise" or a "guaranty" of slavery, was 
bound up in these words ? Nothing is said about slavery or 
slaves. And since nothing is said, how can " strict construc- 
tion" admit the plea that something was intended ? And that 
that something was (what is not mentioned in the Constitu- 
tion) a " guaranty" or a " compromise" in its favor? 

Allowing, one moment, for the sake of the argument, that 
the word "persons" did mean "slaves," and that the States 
holding few or no slaves consented to an arrangement by 
which three-fifths of the slaves were to be counted, in the 
apportionment of representatives and direct taxes — What 
then? How' is the " compromise" or the "guaranty" of 
slavery made out ? "Strict construction" can infer nothing 
of the kind. It can only see a bargain about the payment 
of money, and the right to choose a given number of repre- 
sentatives — a barter trade, in which the Yankee States in- 
tended to benefit their pockets at the expense of a portion ef 
their political power — and got the worst of the bargain, as 
other Esaus have done before them. Further than this, 
"strict construction" could not go, granting all the premises 
claimed. 

But " strict construction" will never consent to the 
premises. It will by no means admit, that when the Con- 
stitution speaks of " persons" — of human beings, in distinc- 
tion from things, it means "goods and chattels personal, to 
all intents, constructions and purposes whatsoever," — of 
" things" in distinction from "sentient beings." We pass 
to another topic. 

"Migration orImportation." 

" The migration or importation of such persons as any of the States 
now existing shall think proper to admit, shall not be prohibited by Con- 
gress, prior to the year one thousand eight hundred and eight, but a tax 
or duty may be imposed on such importation, noT exceeding ten dollars 
for each person."— U. S. Const. Art. I. Sect. 9, "Cliause 1. 

What " compromise" or " guaranty" of " the peculiar in- 
stitution" have we, here ? For the sake of the argument, 
we will, in the first place, suppose, that " the migration or 
importation of such persons," &c. means " the migration 
and importation of " slaves. What does " strict construc- 



CHAP. II. STRICT CONSTRUCTION. 29 

tion" see in this clause of the Constitution, then ? — 
It notices, 

1. That it applies only to the States " now existing" that 
is, when the Constitution was formed, adopted or put into 
actual operation. Kentucky, Tennessee, Louisiana, Alaba- 
ma, Mississippi, Arkansas, Missouri, a majority of the present 
slaveholding States, *as well as Florida, are not included, and 
never were, and never can be, in the provisions of this clause; 
and whatever of " compromise" or of " guaranty" the "pe- 
culiar institution" in the six other slave States may claim, 
or may have claimed, under it, the seven States above men- 
tioned never have had, and never can have, any part or lot 
in the matter. Congress may, at any time, do, in respect 
to those States and to this Territory whatever it might have 
done, had the clause never have been written. To them it 
brings neither " guaranty" or " compromise." It notices, 

2. That the year one thousand eight hundred and eight, 
having gone by, thirty-seven years ago, whatever of compro- 
mise" or of " guaranty" the clause may have given to some 
of the original States, for a time, the period of its operation 
has long since elapsed, and the present generation has no 
more to do with it, than with the edicts of Caesar Augustus.* 
It notices, 

3. That the clause, even when in force, in respect to the 
original States, did not, on the principle of " strict construc- 
tion" restrain Congress from "establishing justice" and 
" securing the blessings of liberty" by the general abolition 
of slavery. On that subject, the clause under consideration, 
had nothing to say, and accordingly said nothing. 

So that if it could be true that the word "persons" here 
used, meant slaves^ it could not be true on the principles of 
"strict construction" that the system of slavery derives any 
"guaranty" from it, or its existence " compromised" or per- 
mitted by it. 

But back of all this lies the self-evident truth that "per- 
sons" are human beings, with "souls" as well as bodies — 
and that consequently, they are not " chattels personal" and 
" things." The dictionaries tell us this. " Strict construc- 
tion" decides according to the meaning of the tuords — and the 
word "persons" can not mean "slaves" " Strict construc- 

*If the claimant, by his own construction ind Ma ewn showing h s? 1 : <\ 
''bond" satisfied, to the very letter— if he has had his cake, and eat it up, a gene- 
ration ago, for what honest object does he come into Court, whining about his 
•''bond" and -'guaranty" and ''compromise/' now? Was the "compromise" 
all on one side ? Is the twenty years' respite never to run out ? Constitutional 
expositors who urge "compromises" and "guaranties" after this fashion, must 
either be veiy dull of apprehension themselves, or presume largely on the stu- 
pidity of others. 



30 AMERICAN CONSTITUTIONAL LAW. 

tion" accordingly reads this clause as applicable to the in- 
gress or egress of "human beings with natural rights" — "a 
man, woman, or child, considered as opposed to things or 
distinct from them." These may be English, French, 
Dutch, Irish, Malay, Hottentot, Hindoo, or African. But 
they can not be slaves. 

Before dismissing this topic, it may be worth while to 
notice a remarkable inconsistency of those who hold the op- 
posite doctrine. If it be true, as they insist, that the mi- 
gration and importation of slaves is described in this clause, 
and that prior to the year 1S0S, Congress had no power to 
. prohibit their ingress, by migration or importation, into " any 
of the States," &c, that should " think proper to admit" 
them — then it follows that the famous law of 1793, for the 
seizure and return of fugitive slaves, migrating into States 
willing to receive them, was palpably unconstitutional and 
premature.* Not less so. I may add, upon the construction 
that makes " persons" to mean human beings, in distinction 
from things, from chattels, and slaves. 

Suppression of Insurrection; 

" Congress shall have power" "to provide for calling forth the mili- 
tia to execute (he laws of the Union, suppress insurrections and repel in- 
vasions.-' — United States Constitution, Article I, Section 8, Clause 14. 

It is claimed that by this clause, the National- Govern- 
ment is bound to assist in quelling an outbreak of refracto- 
ry slaves, whenever they may refuse to work, or whenever 
they may forcibly resist their masters. 

What says a "strict construction''' of the Constitution to 
this claim ? 

"Congress shall have power to" do a specific. thing. Does 
that mean that Congress shall do that specific thing ? Or 
does it only mean that Congress shall act according to its 
discretion, in the matter ? 

" Congress shall have poiver" (under this same section) 
" to lay and collect taxes, duties, imposts" — " to borrow 
money on the credit of the United States" — "to establish 
uniform laws on the subject of bankruptcies throughout the 
United States" — " to declare war, grant letters of marque 
and reprisal" — " to raise and support armies" — " to provide 
for, and maintain a navy," &c. &c. &c. Does this language 
mean that Congress shall do all or any of the things speci- 
fied ? Or that it shall do this on demand of any particular 
portion of the country, irrespective of its own best judgment 

*See address ol Alvan Stewart, Esq. And here we hate another illustration 
of the fidelity and. acumen with which the Constitution has been expound- 
ed, hitherto, by its official guardians ! 



CHAP. II. STRICT CONSTRUCTION. 31 

of the "justice" of the measure, and the interests of the 
country at large? To ask questions like these, is to answer 
them. 

" To execute the laws of the Union." But do " the laws 
of the Union" enforce the labor of slaves, or legalize the 
power of the masters ? By what clause of the Constitution 
are such powers conferred ? 

** To. suppress insurrections and repel invasions." And 
what is an insurrection? " Strict construction" inquires, at 
every step, into the meaning of the words, (in their ordinary 
import) which the Constitution employs. We must call 
Noah Webster again, to the stand. 

'* Insurrection. — A rising against civil or political authority ; the open 
and active opposition of a number of persons to the execution of law, in a 
City or State. It is equivalent to sedition, except thai sedition expresses 
a less extensive rising of citizens. It differs from rebellion, for the latter 
expresses a revolt, or attempt to overthrow the government, to establish 
a different one, or to place the country under another jurisdiction. It 
differs from mutiny, as it respects the civil or political government, whereas 
a mutiny is open opposition to law in the army or navy." — Webster's Dic- 
tionary. 

An " Insurgent :" — Is " A PERSON who rises in opposition to civil or 
political authority ; one who openly and actively resists the execution of 
laws. An insurgent differs from a rebel. The insurgent opposes the exe- 
cution of a particnlar law or laics, the rebel attempts to overthrow or 
change the government, or he revolts, and attempts to place the country 
under another jurisdiction. All rebels are insurgents, but all insurgents 
are not rebels." — lb. 

Admitting, for the sake of the argument (what is not true) 
that a slave can be a "person" in the eyeof the law, it is 
evident that the refusal of a* slave to obey his overseer or 
owner — and. that his forcible resistance to their persons or 
to their authority can not amount to an insurrection — does 
not constitute him an insurgent. The authority of the mas- 
ter over the slave is neither "civil" nor" political authority" 
The slaveholder is not, by virtue of his slaveholding, a legis' 
lator or a magistrate. Neither the Constitution of the United 
States nor that of any one of the slave States, directly con- 
fers legislative or executive power upon the individual slave- 
holder, as such. When a slave refuses to obey a command 
of his master, he does not refuse to obey a law, either of the 
State or the Nation. When he resists the enforcement of 
his master's demand, such resistance is not " opposition to 
the execution of law." If a thousand or a million of slaves 
should do the same thing, at the same time, it would not 
alter the nature of the act. In doing it, they would resist 
only their masters. They would not resist " the execution 
of law" — they would not rise against " civil or political au- 
thority." And consequently they would be guilty of no 
insurrection. ,The masters, in such a case, might bring their 



32 AMERICAN CONSTITUTIONAL LAW. 

several actions against the slaves at Justice's Courts, for 
" assault and battery," if the slaves could be accounted in 
law, " persons." But since this is not the case, the thing is 
never done.* 

It is often claimed, on behalf of the " domestic institution 
of slavery," that it is part and parcel of the family relation, 
or at any rate, so nearly resembles it, that it may be judged 
of by the same rules. The slave is compared with the hired 
servant, ' the apprentice, the minor child, and sometimes, 
even with the wife. And the authority of the slaveholder 
and overseer is called "paternal" and is represented as sim- 
ilar to the authority of the " boss" workman, the employer, 
the master. of the apprentice, the guardian, the parent, the 
husband. 

Let this clause of the Constitution be read in the light of 
such representations. Here are hired servants that decline 
to do the bidding of their employers. Here are bound ap* 
prentices that will neither make shoes, nor tan leather, nor 
ply the needle, nor wield the broad-axe, nor swing the 
sledge-hammer. Here are minor children that throw down 
their hoes in the corn field, or their scythes in the meadow. 
Here are house-wives that demur against the drudgeries of 
" domestic"-cookery, that will neither bake or boil pot, will 
neither churn, wash, nor iron ; at least without the stipulated 
compensation of new gowns, caps, and ribbons, beyond the 
convenience or good pleasure of their husbands. High 
words ensue, and words ripen into blows. The contagion 
spreads from family to family, from village to village, from 
State to State — confusion reigns, industry is paralyzed, 
broom-sticks are brandished, and broken ribs and bloody 
noses complete the scene. Now for the remedy. " Con- 
gress shall have power, to provide for calling forth the mili. 
tia to execute the laws of the U?iion, suppress insurrectio?is, 
and repel invasions /" 

. If irony be detected in the picture, it is only because 
there was absurdity in the thing that presented itself for the 
portrait. 

On the principle of "strict construction" this clause of 
the Constitution, so far from making it obligatory on Con- 
gress to employ the military force of the Nation to enforce 
the labor of slaves, or to interfere in the " domestic" quar- 

U do not forget that the enactments of the slave States provide foT the pun- 
ishment of the slaves as criminals. But I contend thnc those enactments are 
in fiat contradiction of the code that holds them as goods and chattels personal. 
If the one is valid law, the other can not be, and any impartial Court would so 
decide. The moment a slave is legally indicted for crime, that moment he is 
legally declared a person, and not a chattel; in other words he is legally, 
emancipated. 



CHAP. II. STRICT CONSTRUCTION. 



33 



rels of servants and their masters by M calling forth the mi- 
litia," does not even invest Congress with thepower to do any 
such thing. 

Those who hold the -opposite doctrine, are nevertheless 
wont to proclaim loudly, the very limited authority of the 
Federal Government, its incompetency to intermeddle with 
local concerns ; and they magnify greatly the untouched 
independency, and reserved powers of the separate States. 
All this is urged, in special reference to the existence of 
slavery. But in this very " peculiar domestic" concern of 
keeping the slaves quiet, their theory is reversed ! The 
Federal power is every thing, and State power is unable to 
punish murder, nay, even to restrain assault and battery, 
without 'the national arm. A kitchen quarrel between maid 
and mistress, an altercation between a slave-driver and his 
gang, a street brawl, blows between a night-walker and a 
patrol, a chase after a runaway chambermaid or ostler, at- 
tendance on a religious meeting after nine o'clock or after 
sunset, or by Sabbath sunlight, without a written pass ; the 
preaching of a sable colored laborer to his fellows, the keep- 
ing of a school to teach the alphabet, the unseasonable visit 
of a lover to his mistress, of a husband to his wife, or of a 
mother to her offspring; the refusal to labor without wages, 
or to do the unlawful bidding of the debauchee or the drunk- 
ard — all these, or either one of them, are gravely held, by 
constitutional lawyers, to be fit occasions for calling out the 
national militia — all these, or either one of them, if persist- 
ed in, and by a sufficient number of persons to embarrass or 
endanger the slaveholders, are held to be equivalent to an 
insurrection ! 

Let it be noted that the power of Congress to suppress 
" insurrection" carries along with it, the power of Congress 
to define "insurrection" — to say in what an insurrection 
consists, and in what it does not consist. And "strict con- 
struction" insists that Congress shall frame this definition 
in accordance with the ""ordinary import of the words 1 '' — in 
accordance with the testimony of the accredited lexicogra- 
phers of the language. And where shall we find better 
authority than that of N"oah Webster ? Or a respectable 
definition at variance with the one quoted from him ? 

And when Congress shall have defined the word " insur- 
reotion"'' in direct. reference to proposed action in the case of 
refractory slaves, it will have dipped prett.y deeply into the 
" delicate question" of the legality of American Slavery ! 

Before dismissing entirely the definition of the word 

3 



34 AMERICAN CONSTITUTIONAL LAW. 

" insurrection," employed in the Constitution, it may be 
well to see how nearly we can approximate towards the dis- 
covery of a definition furnished by the Constitution itself. 
The Constitution is particular, in its definition of the word 
" treason" and Noah Webster may help us to compare the 
words "treason" and "insurrection." 

" Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and com- 
fort. No person shall be convicted of treason, unless on the testimony of 
two witnesses to the same overt act, or on confession in open Court." — 
United States Constitution, Article III, Section 3, Clause 1 . 

" Treason, is the highest crime, of a civil nature, of which a man can be 
guilty. In general, it is the offence of attempting to overthrow the go- 
vernment of the State to which the offender owes allegiance, or, of be- 
traying the State into the hands of a foreign power." — Webster's Diction- 
ary. 

If there be a difference between the Dictionary and the 
Constitution, it lies in this; that the Constitution limits the 
" general" meaning of the Dictionary, and restricts it to the 
particular overt acts specified — levying war— adhering to 
enemies ;— whereas the more "general" definition might 
include other acts of the same nature and design. By the 
same rule, a constitutional definition of " insxirrection" — if a 
definition had been furnished, would have restricted rather 
than enlarged, the definition of the Dictionary, confining 
44 insurrection" to the specific act of bearing arms against 
the civil or political authority, and the execution of the laws. 

The difference pointed out by Webster between insurrec- 
tion and rebellion, is substantially the same as is noticed in 
comparing his definitions of " insurrection" and of " treason." 
Insurrection is the less comprehensive act. It may consist 
in an armed resistance against the execution of a 'particular 
law of the State, without directly attempting the more com- 
prehensive enterprise of overturning the State itself, and 
establishing another government over it. 

The nearest literal adhesvm to the words of the Consti- 
tution ihafthe case admits of, conducts us, therefore, to the 
same definition (substantially) of the word insurrection, that 
is furnished by Webster, only more carefully restricted, less 
liable to be extended to a variety of indefinite acts. 

In no view we can take, will "strict construct ic7i" permit 
us to apply the clause of the Constitution now under review, 
to the case of refractory slaves : — not even if slaves were to 
be considered and dealt with, as "■■persons." 

But this is not the case. — As slaves are "deemed, sold, 
taken, reputed and adjudged, in law, to be CHATTELS 
PERSONAL" — " to all intents, constructions and purposes 
whatsoever" — it is manifestly beyond the power of irony or 



CHAP. II. STRICT CONSTRUCTION. 35 

satire to overpaint the' picture of absurdity and ridiculous- 
ness, wrapped up in the claim, under this clause, of a con- 
stitutional pledge, guaranty, or even authority or warrant, 
for the employment of the ?iational militia to keep the slaves 
in subjection, to enforce their labor, or to protect their own- 
ers against them. 

" That is property which the law makes property." And 
"Congress shall have power" to "suppress insurrections" of 
" property" against its owners ! — or " against the execution 
of law !" " Specific articles, such as slaves, working beasts, 
animals of. any kind'' decline performing the tasks their 
owners desire of them. They frisk out of their traces, run 
back, refuse to draw, throw up their heels; they crush the 
feet of their Balaam-eyed riders against a wall, they crouch, 
lie down and refuse to rise again. And behold ! — " Con- 
gress shall have power to" provide for the emergency by 
"calling forth the militia, to execute the laws of the Union!" 
" Specific articles" of propert} r , in conspiracy with " Real 
Estate," aspire to become owners of " specific articles" and 
holders of "real estate" themselves. " Goods and Chattels" 
demur against being held as goods and chattels any longer, 
desirous of possessing " goods and chattels" in their turn. 
Constitutional Law, putting on its wig, and mounting its 
woolsack, decides it to be a manifest case of " insurrection" 
against the State ! The contest between " Goods and Chat- 
tels" and their " owners and possessors" waxes warm and 
comes to blows. " Goods and Chattels" are likely to be- 
come an over-match for their owners. " Working animals" 
meditate deeds of blood and slaughter among their posses- 
sors. Horns and heels are already bringing muskets and 
cutlasses into requisition. " Congress shall have power" to 
protect their owners against their property — to "suppress 
insurrections and repel invasions /" To wage a war of exter- 
mination against "Goods and Chattels" and " Real Estate" 
for the benefit of their " owners and possessors, and their 
heirs, executors, administrators and assigns !" Such is a 
specimen of the jargon resulting from the construction of 
the Constitution against which Ave contend. 

Protection against Domestic Violence. 

But another section of the Constitution, or rather a muti- 
lated fragment of it, is quoted to the same effect. The en- 
tire section reads thus : 

"The United States shall guaranty to every State in the Union, a re- 
publican form of government, and shall protect each of them from inva- 
sion ; and on application of the legis'ature, or of the executive, (when 
ihe legislature can not be convened,) against domestic violence." 



36 AMERICAN CONSTITUTIONAL LAW. 

The first part of this section will receive particular atten- 
tion, in another place. The provision looks in quite another 
direction than the federal guaranty of slavery; a circum- 
stance sufficiently obvious to every one ; and accordingly 
we never find it quoted in its proper connection, or quoted 
at all, by those who plead the constitutional compromises 
and guaranties we are now considering. 

The United States shall, in certain contingencies specifi- 
ed, protect each of the States from invasion, and from do- 
mestic violence. Whatis the " domestic violence" intended? 
The connection leads us to conceive of that violence as natu- 
rally resulting from attempts to subvert "a republican form 
of government" and establish other usages in their stead. 
At all events, it is evident that the section must not be 
construed into a right or obligation, on the part of the United 
States, to lend its aid and authority to the support of anti- 
republican laws and usages in the States. For that would 
be to quote the provision in opposition to its own express 
terms. And consequently the provision can not be constru- 
ed as authorizing or requiring the United States to assist in 
supporting slavery in any of the States, for slavery is known 
to be the most anti-republican thing that can be conceived. 
Slavery and republicanism are opposites, and the common 
Use of language places the terms in opposition to each other. 
And "strict construction" never permits a depaiture from 
the plain meaning of the words. 

This view is further confirmed by a consideration of the 
ordinary use and proper meaning of the terms "domestic 
violence." 

"Domestic. Belonging to the house or home; pertaining to one's 
place of residence and to the family. ****** Pertaining to 
a nation, considered as a family, or to one's own country; intestine, and 
not foreign." — Webster's Dictionary. 

" Violence. 1. Physical force, strength of action or motion. 2. Moral 
force; vehemence. 3. Outrage, unjust force, crimes of all kinds. 4. Ea- 
gerness, vehemence. '5. Injury, infringement. 6. Injury, hurt. 7. Rav- 
ishment, rape. To do violence to, or on ; to attack, to murder. To do 
violence to, to outrage, to force, to injure." — lb. 

"Domestic violence" therefore in the bad senses of the 
word violence, (which the Constitution evidently intended,) 
expresses nothing like the refusal of a slave to labor, or his 
demanding, asserting or even defending his natural and in- 
alienable rights — his resisting the outrages and aggressions 
of others, upon those rights. On the other hand, the defini- 
tion of "domestic violence" does very accurately describe 
the forcible chattel enslavement of men, women and chil- 
dren ; the treatment that slaves inevitably receive, under 
the slave system, the outrages, injuries, and crimes, notori- 



CHAP. IL— STRICT CONSTRUCTION. 37 

ously and constantly perpetrated upon them ; and especially 
and emphatically does it describe the systematic scourging, 
confinement, fettering, hunting with blood-hounds, shooting 
down with rifles by individuals, and by volunteer bands of 
unauthorized and armed men, of fugitive or refractory labor- 
ers — thus filling the "house, the home, the place of resi- 
dence" — "the nation considered as a family" — "one's own 
country" with the worst species of " violence" — with " intes- 
tine" disorder and commotion. The graphic descriptions 
of Mr. Jefferson correspond with these observations. He 
speaks of slavery as an act of violence when he affirms that 
the liberties of the enslaved " are not to be VIOLATED, 
but with the Divine wrath" — and he characterizes this vio- 
lence as a " DOMESTIC" violence, in both the senses we 
have quoted from Webster. "The parent storms, the child 
looks on, catches the lineaments of wrath, puts on the same 
airs, in the circle of smaller slaves, gives loose to the worst 
of passions, and thus nursed, educated, and daily trained in 
tyranny, can not but be stamped by it with odious peculiari- 
ties." Thus the " house, the home, the place of residence" 
is filled with " domestic violence." And not only so — "the 
nation considered as a family," our " own country" accord- 
ing to Mr. Jefferson, is filled with the same domestic violence. 
" With what execration should the statesman be loaded, 
who, permitting one-half the citizens to trample on the 
rights of the other, transforms those into despots, and these 
into enemies, destroys the morals of the one part, and the 
amor patriot of the other." 

No other "domestic violence" in this country, can bear a 
comparison whh slavery. "Strict construction will never 
consent that the Constitution shall be understood to sanction 
the national enforcement of "DOMESTIC SLAVERY" 
under plea of protection, against "DOMESTIC VIO- 
LENCE !" 

Further than this, we insist not, at present. In another 
place we shall inquire whether the Constitution does not 
require the suppression, by the United States, of this "do- 
mestic violence." 

Reserved Rights of the States. 
The right of the States to tolerate and sustain slavery is 
not unfrequently grounded on the reserved rights of the 
States, in conformity with the Constitution of the United 
States; viz : 

lf T he powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people." -Amendments, Article 10. ', 



38 AMERICAN CONSTITUTIONAL LAW. 

" The powers" — What powers ? All possible and impos- 
sible, conceivable and inconceivable powers? — The power 
to make black white, and white black ? — to reduce immor- 
tal souls tochattels? — to transform lawlessness into law? to 
construct a rectangular triangle whose three angles shall 
not be equal to two right angles ? 

To hear some men talk about the "reserved rights of the 
States" one would think that those rights included the right 
of omipotence ; or rather, the right to do what omnipotence 
itself can not do. 

" Are reserved.'' 1 Notice the words. " Reserved,'" not origi- 
nated : — " Reserved," not "guarantied." 

" Strict construction" will insist upon a rigid adherence 

to the words i in their obvious and customary meaning, as 

applicable to the matter in hand. 

" Power." " The right of governing, or actual government " — f 'legal 
authority, warrant" — "right, privilege.-"' — Webster's Dictionary. 

The " reserved RIGHTS of the States" can not include 
reserved WRONGS ! — The powers " reserved to the States 
or to the people" are rightful powers — rightful authority. 

It is not provided, nor affirmed, in this article of amend- 
ments to the Constitution that the States or the people may 
do, whatever the Congress and the United States may not 
do ! There are many, very many things, that neither people, 
States, Congress, nor United States, may lawfully, or con- 
stitutionally do. As for example, neither People, nor State 
Governments, nor Congress, nor United States, may lawfully 
or constitutionally, select every tenth man in a ,township, or 
tenth man in a hundred, throughout the country, and confis- 
cate their property, pro bono publico, ancl then colonize them 
to Liberia, to " get rid of them." They may not string up 
to the yard arm, every Irish emigrant that reaches the 
country, because he is not a "Native American." They 
may not seize upon Joseph Story, or Henry Clay, or Martin 
Van Buren, and drag them to unpaid labor in the rice 
swamps of Carolina, without jury trial, without charge of a 
crime. They may not seize upon every man with a hair lip 
or with red hair, or with black skin and crisped hair, and do 
the same thing with them. Nor may they suffer it to be done 
by others. And though it should be proved that among "the 
powers delegated to the United Stales by the Constitution," 
and "prohibited by it to the States" no mention whatever is 
made of the power or authority to do or not to do the things 
that have been described — it would not follow from the 10th 
article of Amendments to the Constitution, that either "the 
•S\ttes or the People " have a right to perpetrate or to tolerate 



CHAP. II. STRICT CONSTRUCTION. 39 

such crimes. It would not follow that their participancy in, 
or toleration, or legislative sanction of such crimes was con- 
stitutional. It would not follow that Congress, and the 
United States possess no rightful and constitutional authority 
to suppress such .criminal practices. Thus far, at least, a 
" strict construction" of the article by the proper meaning of 
the icords may conduct us. But this is not all. 

It is not to be taken for granted, without scrutiny, (as is 
commonly done) that the power of abolishing slavery is not 
delegated to the-United States, by the Constitution. Nor is 
it to be thus taken for granted that the practice and legisla- 
tive sanction of slavery is not, by the National Constitution, 
prohibited to the Slates. If the opposite of the commonly 
received doctrine, on these points, should be found true, the 
tenth article of the amendments to the Constitution of the 
United States will, itself have to be " reserved to the States 
respectively, or to the People" for some worthier, some 
more dignified and republican, use than that of attesting the 
constitutional right of baby stealing, and woman whipping, 
and selling boys and girls at auction, along with tallow 
candles, by the pound ! 

SECTION II. 
THE CLAIMS OF LIBERTY. 

The Preamble — Union, justice, domestic tranquility, common defence, 
general welfare, liberty— Powers of Congress— Power over commerce— 
A " Republican form of Government," (definitions of a republic by va- 
rious authorities) — Security of liberty, " due process of law"— Slavery 
in the Territories and Federal District — The Constitution and the District 
of Columbia — Restrictions on State power — Inhibition of bills of attain, 
der, laws impairing the obligation of contracts, titles of nobility, (aris- 
tocracies, feudalism) making war, troops in time of peace — Immunities 
of citizens in each State — The summing up — Shylock and his pound of 
flesh— The Conclusion. 

Having patiently examined those portions of the Constitu- 
tion that are claimed in support of slavery, we may now be 
permitted to inquire what portions of the document, if any, 
may be regarded as friendly to liberty. It will be remem- 
bered that we are still litigating our cause in the Court of 
" strict construction " — where a final disposal of the 
claims of slavery upon the Constitution is deferred, until.the 
claims of liberty can be first examined. At the Court of 
" strict construction" it is a well understood axiom that a 
document in favor of slavery can not be in favor of liberty ; 
and that a document in favor of liberty can not be in favor 



40 AMERICAN CONSTITUTIONAL LAW. 

ot slavery : that to establish the one claim is to overthrow the 
other. " Strict construction" studies, and sticks to the dic- 
tionary ; it goes by the meaning of the words, and hence the 
axiom that has been quoted, since the words " liberty" and 
" slavery" are opposite terms. 

The Preamble. 

" We, the people of the United States, in order to form a more perfect 
union, establish justice, ensure domestic tranquility, provide for the 
iommov. defence, promote the general icclfare, and secure the blessings of 
LIBERTY to ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America." 

"Strict construction" always holds the object and design 
of a decent and respectable document to be what it declares 
itself to be. At least it does this, until it can be proved, by 
the laws of " strict construction" to declare anuntruth, and 
then it no longer remains respectable or trustworthy. No- 
thing further need or can be done with it in that case, but 
to proclaim its true character! While the Constitution of 
1787-9 claims either respect or authority , it must be constru- 
ed to mean and intend what it says it means and intends. 

And what does it say it means and intends ? What mean- 
ing and intent do the words it employs, (in their natural and 
ordinary acceptation,) convey ? The Constitution says it 
means the following things: — 

1. " To form a more perfect union." Then it does not 
mean to " permit one-half the citizens to trample on the 
rights of the other — to transform those into despots, and 
these into enemies" — as is done by slavery. 

2. " To establish justice." Then it does not. mean to 
"guaranty" or tolerate injustice. It means to abolish and 
overthrow it, and there can be no greater injustice than 
slavery. 

3. " To ensure domestic tranquility." Then it does not 
mean to guaranty or permit " domestic violence." It means 
to forbid and restrain it. There is no "domestic violence" 
equal to slavery. And nothing like slavery conflicts with 
"domestic tranquility." 

4. " To provide for the common defence." Then it does 
not mean to permit a common warfare upon the defenceless. 
It does not mean to defend the aggressors. It does not mean 
to make " compromise" with a system that renders a "com- 
mon defence" against foreign invasion impracticable, by 
"destroying the morals of the one part, and the amor patriot 
6f the other." It means of course to abolish slavery, since, 
by no other method, can the " common defence" be provid- 
ed for, or made possible. 



CHAP. II. — STRICT CONSTRUCTION. 41 

5. " To promote the general welfare." Then it can not 
mean to promote or "guaranty" the known and admitted 
enemy of the " general welfare" — slavery. It can not mean 
to lend its aid in crushing the laboring, the producing class, 
in half the States of the Republic; as it would do, if.it make 
a compromise with slavery. 

6. "To secure the blessings of liberty to ourselves, and 
oar posterity." Then it means to overthrow the deadlvan- 
tagonist of liberty, to wit, slavery. { 

These results are as certain as it is that the meaning or 
intent of any document is to be ascertained by its own ample, 
clear, express, unambiguous, and distinct language. In other 
words, they are as certain as it is that "strict construction" 
or any other sort of construction, can determine the meaning 
of the Constitution. " Strict construction" must pronounce 
judgment in favor of liberty and against slavery, or decide 
that the' -Court has no jurisdiction — that "strict construction" 
has no right to a seat on the wool-sack. 

Powers 'of Congress. 

But has the Constitution clothed Congress with the au- 
thority and power to carry into execution the meaning and 
intent of the Constitution itself 1 ? Let us see. 

" The Congress shall have power" — " to make all laws which shall be 
necessary and proper, for carrying into execution the foregoing- powers, 
and all other powers, vested by this Constitution in the Government of the 
United States, or many department or officer thereof." — Art. I, Sect . 8, 
Clause 17. 

And so the Constitution itself gives an explicit and direct 
affirmative answer, to the question. " Strict construction" 
has nothing to do but to record and re-echo it. 

But suppose the legislation of Congress in accordance with 
the Constitution of the United Stales, should conflict w T ith 
State legislation, the question may be asked — " Could such 
State legislation, in th^icase, be legally and constitutionally 
set aside, as null and void? Could the Federal Courts so 
decide, and render such State legislation of non-effect? 
And must the State authorities acquiesce?" There is a pro- 
vision in the Constitution containing a direct and explicit 
answer to this question likewise. 

" This Constitution and the laws of the United States which shall be 
made in pursuance thereof, and all treaties which shall be made under the 
authority of the United States, shall be THE SUPREME LAW OF 
THE LAND, and the judges in every SJafeshallbe bound thereby, ANY 
THING in the CONSTITUTION or LAWS OF ANY STATE TO THE 
CONTRARY NOTWITHSTANDING." 

Whatever, therefore, in the action of any of the States, 
conflicts with the Constitution of the United States ; wbat- 



42 AMERICAN CONSTITUTIONAL LAW. 

ever conflicts with the laws of Congress, made in accordance, 
with, and "in pursuance" of, the grand objects of that Con- 
stitution, is unconstitutional, illegal, null, and void. It can 
not have the authority of law. 

Just as certain, therefore, as it is that the Constitution of 
the United States was "ordained" to " establish JUSTICE" 
" and SECUEE the blessings of LIBERTY to ourselves' and 
our POSTERITY"— just as certain as it is that the slave 
codes and enactments of the slave States establish injustice, 
and render the liberties of ourselves and our posterity inse- 
cure — just so certain as it is that the Constitution has con- 
ferred on Congress " power to make all laws which shall be 
necessary and proper for carrying into execution" the ex- 
press and declared objects of the Constitution itself; just so 
certain is it (on the principles of " strict construction") that 
a law of Congress, abolishing slavery in the States where it 
exists, would be the " Supreme law of the land" and the 
judges "in every State" would "be bound thereby, any 
thing in the Constitution or laws, of any State to the contra- 
ry notwithstanding." The plain, direct and express words 
of the Constitution of the United States, literally taken, say 
precisely this thing; and there is no escape from it, without 
appealing FROM the tuords of the Constitution to the sup- 
posed intentions of the framers — and this is exactly what 
"strict construction" can not permit. 

But this, it may be said, is all "in the general." And 
some persons appear unable to distinguish between general- 
ities and nonentities. Their vision is microscopic. The 
more ample the dimensions of the object, the less capable 
they are of perceiving it. Had the Constitution specified 
some very minute matter in which either " union," " jus- 
tice," "domestic tranquility," the "common defence," "the 
general welfare," or " the blessings of liberty," were involv- 
ed, the meaning would have been j-Mlpable enough. Per- 
haps even as large an object as chattel slavery itself, might 
have been seen, had it but been singled out and separated 
from all similar things, of the same class, and called by its 
technical name. (Such men can not see that slavery is for- 
bidden in the Bible, though they understand that extortion, 
and using service without wages are there forbidden !) But 
Constitutions are not commonly adapted or intended to be 
substitutes for the statute book. And because the Constitu- 
tion employs terms which describe and include slavery along 
with similar usages, it is difficult to make these persons see 
that it describes or means any thing at all ! Their " strict 
construction" would be equivalent to no construction, since 



CHAP. II. STRICT CONSTRUCTION. 43 

they allow nothing to be contained in the document, that is 
not expressed by a technical term. 'Tvvere well nigh use- 
less to reason with such. From generalities we will pass to 
such particulars as we maybe able to glean. 

Power over Commerce. 

" The Congress shall have'power" " to regulate commerce with foreign 
nations, and among the several States, and with the Indian tribes." — V. S. 
Const. Art. I, Sect. 8, Clause 3. 

Slaves in law, are " goods and chattels personal." As 
such they are articles of commerce. And it is held and 
pleaded by the slaveholder that, "that is property which the 
law declares to be property." The whole question, then, of 
the chattelhood and commerce in slaves, is in the hands of the 
law making power, wherever that power is lodged. INobody 
pretends that slaves could be held and sold as property with- 
out sp'eciflc enactment of the legislative authorities. The 
right to hold and sell slaves as chattels is not claimed to be 
a natural, original, and inherent right. It rests solely on 
the statute. 

Well, then, the Constitution of the United States as above 
quoted, provides that this whole power " to regulate com- 
merce" to " declare what is property," and what is not pro- 
perty, to say what shall be or shall not be bought and sold, 
and if so, under what restrictions, is vested in the Congress 
of the "United States , and . being thus vested, it is denied to 
the legislatures of the several States, so' far forth, as " com- 
merce with foreign nations, and among the several States, 
and with the Indian tribes," is concerned. In all this field 
of commerce, " that is property which the law" of Congress 
" declares to be property" — if the commercial law maxims 
of the slave code are to be our guide — that is, if slaves are 
to be deemed chattels at all ! 

Thus far, in the Court of "strict construction," all is 
" plain sailing" enough. How all this is to operate, or what 
bearing it is to have upon the tenure upon which slave pro- 
perty is held in certain States of this Union, " strict construc- 
tion" has no occasion now to inquire. A little interlocutory, 
lobby conversation, however, on this point, may be here in- 
dulged. 

[If Henry Clay has taken the right view of the subject 
(and it is not easy to see what other view any claimant of 
slave property can take) it is manifest that, in the exerciseof 
their constitutional power, under this clause, the Congress of 
the United States may strike a deep, if not a fatal blow at 
the very root of all slave property at the South. For,. as an 



44 AMERICAN CONSTITUTIONAL LAW. 

argument against such congressional action, Mr. Clay insists 
that the chattelship of the slave can not be separated from the 
right to carry him from State to State as an article of mer- 
chandise. The same principle would apply to the foreign 
slave-tr.ide (though the immediate and direct practical op- 
eration of its abolition might be less serious,) that is to say, 
the power that was competent to the abolition of the slave- 
trade, domestic or foreign, was competent likewise to the 
abolition of slavery itself since both rested on the same basis, 
and the one was involved in the other, and depended upon\X. 
On some such considerations, doubtless, was founded the 
general belief and assumption, at the time the present Con- 
stitution was adopted, that the abolition of the foreign slave- 
trade was. to involve the abolition of slavery. The now as- 
certained impracticability of putting down the slave-trade, 
on the high seas, and in our own commercial cities, in the 
presence of slavery, is only another ftk&tr&t^s ef Mr. Clay's 
doctrine that the right of slave chattelship and the right of 
carrying on the slave-trade are one and indivisible ! These 
are his words : — 

"" The moment the incontestible fact is admitted that negro slaves are 
property, the law of movable property attaches itself to them, and e-- 
cures the right of carrying them from one State to another, where they 
are recognized as property." — Speech in the Senate, February 7, 1839. 

In view of the constitutional provision now under consid- 
eration, as a data of reasoning, yet retaining Mr. Clay's 
identification of chattelship with commerce, we may para- 
phraze and improve his logical process on this wise. 

'The moment the incontestible fact is admitted, that the 
Congress of the United States are by express provision of 
the Constitution, clothed with the power of "regulating 
commerce among foreign nations, and among the several 
States, and with the Indian tribes" — that moment the con- 
stitutional power of control over slave property in the sev- 
eral States, attaches itself to the Congress, and secures to 
that body the right to 'declare what is property,' and what, 
as being property, may lawfully be carried from one State 
to another.' 

If there be any flaw in this logic, it must lie in its adop- 
tion of Mr. Clay's doctrine, that the chattelship and the com- 
merce of slaves can not be separated from each other.*] 

* How well the strict letter of the Constitution agrees with Mr. Clay's iden- 
tification of chattelship with commerce; how the Constitution, or how. Mr. 
Clay*s doctrine would bear upon the free trade and tariff question — or which 
view ought to prevail, we are not now concerned to inquire. We have, only. to 
construe the. Constitution by its own words. 



CHAP. II. — STRICT CONSTRUCTION. 45 

But all this estimate of consequences, is mere lobby talk, 
with which the Court of " strict construction'' has nothing, 
on the present occasion, to do. The simple question before 
the Court, is the power of Congress over the foreign and 
domestic slave traffic, and that question resolves itself into 
the question whether slaves are in the eye of law, subjects 
of commerce at all. If they are, that commerce, with all 
other commerce, within the limits described, is under con- 
gressional control. So " strict construction " must decide, 
without regard to the bearing the decision may have on the 
tenure of slave property in general. 

An objection has been raised, on the ground that the pow- 
er to " regulate commerce" is not the power to annihilate 
commerce. The objection is groundless for two reasons. 

In the first place, the prohibition of traffic in a particular 
commodity, and between certain specified localities or coun- 
tries, is 7iot an annihilation of commerce, but only a regula- 
tion of it. The making of the traffic in certain commodities 
contraband, does not annihilate commerce. The tariff of 
1S16, designed and operating to exclude the cotton fabrics 
of India, was not an annihilation of commerce. 

But in the second place it has been decided by the Fed- 
eral Courts that the power to regulate commerce does carry 
along with it the power to destroy, to prohibit, to annihilate 
commerce. By the long embargo, under Mr. Jefferson's 
administration, not only foreign commerce, but coast-wise 
commerce between the Stales and even the fisheries, were 
expressly prohibited and substantially destroyed. And when 
some merchants who had been prosecuted for a breach of 
the embargo law, defended themselves by contesting the 
constitutionality of that law, and on this same plea that " the 
power to regulate commerce is not the power to annihilate 
commerce," no plea nor evidence was offered, on the part 
of the Government, to disprove the alleged fact, that com- 
merce was annihilated by the embargo. The plea in Court 
against the defendants, was, that the power to regulate com- 
merce, being an indefinite and unrestricted power, carried, 
of necessity, along with it the discretionary power, to pro- 
hibit all commerce. The plea was offered as a " strict con- 
struction" plea. The Court adopted it as such, declaring that 
they must be bound by the ivords and not by the consequen- 
ces of the Constitution. Judgment was accordingly given 
against the defendants, and the embargo law was sustained. 

To the uninitiated, it may appear somewhat remarkable 
that the same persons who cite the clause concerning ''mi- 
gration and importation " in illustration of the " compromises 



46 AMERICAN CONSTITUTIONAL LAW. 

of the Constitution" in regard to slavery, (inasmuch as the 
power of prohibiting the slave-trade was withheld as they 
say, from Congress, for twenty years) — should nevertheless 
contradict their own conclusions, by denying that now, after 
the twenty years are expired, the Congress possesses any 
such power ! It was under their own construction of the Con- 
stitution, that ihe slave-trade was first tolerated, against the 
then prevailing sentiment of the country, till 1803, and un- 
der the same construction, it was then abolished to a certain 
extent ; and now that a further exercise of the same power 
is invoked, to complete the prohibition commenced in 1808, 
the constitutional power is denied on the ground that the 
clause does not touch slavery, at all ! But " commerce with 
foreign nations" and commerce " among* the several States" 
are placed on precisely the same footing, in the clause be- 
fore us, under which the foreign slave-trade was abolished. 
In this we have another specimen of the trustworthiness of 
the constitutional expositions, on the subject of slavery, that 
have hitherto prevailed ! 

We dismiss this topic by inviting attention to a dilemma, 
of which the opponents of our doctrine may select which 
horn. they prefer. 

If the slave States persist in holding the slaves as " goods 
and chattels personal " the law of " goods and chattels per- 
sonal" attaches itself to them, Constitutional Law and the 
laws of Congress not excepted, securing to Congress, under 
this clause of the Constitution, the right of exercising the 
same powers over slave property and slave commerce, as over 
any oihe-- property and commerce. But the moment the 
slave States determine and affirm that slaves are not " goods 
and chattels personal — to all intents, constructions, and pur- 
poses whatsoever " — that moment every slave in those States 
is emancipated, and becomes a freeman — his chattelship 
disappears and he becomes a man in law as well as in fact. 

"A Republican form of Government." 
We have incidentally adverted, already to the Constitu- 
tional provision that " the United States shall guar a- iy\ to 

A " Among; the several States." Does this mean the .same as between "the 
several States?" The latter phrase would betu-r indicate exclusively a com- 
merce between the citizens of different States. " Among" would seem to com* 
prehend likewise a traffic " among" the citizens of the same States, and this 
would authorize Congress to prohibit the buying and selling of slav°s entirely 
even "among" the residents of the same neighborhood or village. Noah Web- 
ster tells us that li among" means " mixed or mingled with" — as well as " con- 
joined or associated with, or making a part of 'he number"— whereas " be- 
tween" may '• denote intermediate space, without regard to distance." Were 
, we pushed for an exposition, or desirous of pushing the principle of " strict 
construction" we might m - ke something of this distinction. Bui lee it pass. 

J It would seem that the framers of the Constitution were not unacquainted 



CHAP. II. STRICT CONSTRUCTION. 47 

every State in the Union a republican form of government" 
— Art. 4, Sect. 4. It is time to consider, more directly, this 
provision. What shall we understand by the word " guar- 
anty ?" 

" Guaranty. 1. To warrant; to make true ; to undertake or engage that 
another person shall perform what he has stipulated. 2. To undertake 
to secure to another, at all events. 3. To indemnify : to save harmless.'* 
— Webster's Dictionary. 

The United States, then, will " warrant," will " make 
sure," " to every State in this Union," and to all the inhab- 
itants thereof, " a republican form of government." The 
United States " undertake or engage" to see to it that other 
persons besides those directly wielding the Federal Govern- 
ment, that the persons charged with the affairs of the State 
Governments " shall perform what they have stipulated," 
by maintaining tl a republican form of government." The 
United States " undertake to secure, AT ALL EVENTS," 
" to every State in the Union " the government described. 
TheUnited States will ." indemnify, 1 ' will " save harmless" 
from all attempts in any direction, or from any quarter, to 
subvert such a government. Whatever is incompatible with 
a republican government, in any of "the States of thisUnion," 
,; the United States" have bound themselves to abolish and 
sup-press. 

What then, are we to understand by " a republican form 
of government ?" 

'.' Republic. 1. A commonwealth ; a State in which the exercise of the 
sovereign, power is lodged in representatives elected by the people. 2. 
Common interest; th^ public." (obs.) &c. — Webster's Dictionary. 

"Republican. 1. Pertaining to a Republic; consisting of a common- 
wealth. 2. Consonant to the principles of a republic." — 16. 

If slavery be contrary " to the principles of a republic," 
then slavery is anti-republican, and of course the United 
States have guarantied, to every State in the Union, an ex- 
emption from slavery. But the well " known principles of a 
republic' are — that " all men are created equal, and are en- 
dowed by their Creator with certain inalienable rights, 
among which are life, liberty and the pursuit of happiness." 
Any government not in accordance with these "principles" 
is not a republican government. 

" The sovereign power" of a State is not " lodged in rep- 
resentatives elected by the people." in States where one- 
fourth, one-third, or one-half of "the people' 1 are held in 
slavery. There is no " common interest," no " com m oil- 
wealth" in States where "one-half of the citizens" are "per- 

with the English word " guaranty," and I hat when they meant to " guaranty'* 
any thing, they could distinctly and unequivocally say so, 



48 AMERICAN CONSTITUTIONAL LAW. 

mitted" by legislative enactments, " to trample on the rights 
of the other" — to " transform those into despots, and these 
into enemies." 

We are not going beyond th? strict letter of the Consti- 
tution, the meaning of the words it employs, when we say 
this. Our construction is not only not beyond the literal im- 
port of the words, but is based directly upon them.. "Strict 
construction" can make nothing more and nothing less out 
of them. 

But in seeking to ascertain the literal meaning of the 
words, we are not confined to the dictionaries in common use, 
we may appeal to av.y o'her good literary authority for 
the meaning of words just as the compilers of dictiona- 
ries cite standard writers. If the Constitution or : ny oth- 
er leg^l instrument uses scientific terms, we must go to the 
masters of science for the meaning of them. If it uses 
Co : mon Law terms or phrases, we must go to the volumes 
of Common Law to find out the meaning of them. If 't 
employs words m common use among statesmen, civilians, 
and morjilists, we must go to eminent statesmen, civilians, 
and moralists, for a definition of the terms. And those of 
the same age and nation, other things being equal, will be 
the best authority for ascertaining the ordinary import of 
the words. This reference to the current literature of a 
people or of their language, to their public documents and 
archives (such as our National Declar tion of Indepen- 
dence,) or to approved writers and eminent statesmen, to as- 
certain the ordinary import of the language or the words, 
of a written document, like the Constitution, is not only 
permitted but required by the law of u strict construction" 
which confines us to the meaning of th? words, and there- 
fore sets us at work to ascertain, by all the means in our 
power, their wecise import. Such a reference is not to be 
confounded with an appeal to (perhaps) th° same literature, 
statesmen, and writers, for the purpose of ascertaining, 
(otherwise than by the meaning of their words,) the inten 
tions, and design*, the motives and the policy of the fra- 
mers of the Constitution, or instrument, under examination. 
With these explanations, we cite some further definitions of 
" a republican form of government." 

We have so far anticipated this topic as to cite the defi- 
nition contained in the Declaration of Independence. To 
the same point we migh: also quote the " Bill of Rights," 
"Declarations," Preambles, Constitutions, &c. &c, of the 
different States, which form so prominent a feature of the 
political literature of the age and nation in which our Fed- 



CHAP. II. — STRICT CONSTRUCTION. 49 

eral Constitution was drafted. Bat we forbear. They are 
too voluminous for convenience — too well known and too 
unequivocal for dispute. They all look to the establish- 
ment of republican government, and they all lay the foun- 
dation of such government in the doctrine that all men are 
born equal, and possess an inalienable right to liberty. They 
make the very pith and essence of a republican government 
to consist in the protection and security of those righ's. 
The political literature of America knows of no other re- 
publicanism than that which recognizes and professedly se- 
cures such rights. 

To quote to proper advantage, Mr. Jefferson's definition 
"f a republican government, would be ^o transcribe a great 
part of his writings. A brief epitome of it we have in 
his Declaration of Independence. We have it likewise 
in such propositions as the following : 

"1. The true foundation of REPUBLICAN GOVERNMENT is the 
equal rights of EVERY CITIZEN, in his person and property, and in 
their management." 

This is equivalent to a flat denial that any government 
can be a "republican government" that is not FOUNDED 
upon " the equal rights of EVERY CITIZEN," &c. And 
in his Notes on Virginia, the same writer has described the 
legislation of SLAVE STATES as "permitting one half 
the citizens to trample upon the rights of the other" — thus 
explicitly recognizing the slaves as citizens. And the gov- 
ernment thus described, deserves, he says, to be " loaded 
with execration" instead of being cherished as a true re- 
publican government. So says likewise the Constitution of 
the United States, and " guaranties to every Slate in this 
Union" an exemption from, the curse of such an execrable 
government. " The United States" have therefore "guar- 
antied to every State in this Union" a government foun- 
ded—based upon " the equal rights of EVERY CITIZEN, 
in his person, and property, and in their management" Caii 
human language express a more full and unequivocal guar- 
anty than this, of the abolition by "the United States," of 
all the slavery in " every State in this Union ?" 

But let us examine the connected propositions of Mr. 
Jefferson, that his full definition of a " republican govern- 
ment" may be distinctly before us. To the above state- 
ment he adds : 

" " 2. The rightful power of all legislation is to declare and enforce only 
our natural rights and duties, and to take none of them from us. No man 
has a natural right to commit aggression on the equal rights of another ; 
and this is all from which the law ought to restrain him. Every man 

4 



50 AMERICAN CONSTITUTIONAL LAW. 

is under a natural duty of contributing to the necessities of society, and 
this is all the law should enforce on him. When the laws have declar- 
ed and enforced all this, they have fulfilled their functions." 

" 3. The idea is quite unfounded that on entering into society, we give 
up any natural right." 

The full bearing of all this upon the legality and validity 
of slave laws, any where and every where, we do not dis- 
cuss now. In another connection we may, if we have 
room, advert to it. What we have to do here is to find out, 
in the light of our current literature and lexicography, the 
meaning of the phrase, " a republican form of govern- 
ment." And the reader will see that Mr. Jefferson 's defini- 
tion does not cover the government of a slave State. 

We will next introduce Mr. Madison to the stand, and 
ask him to define for us the phrase, " republican form of 
government." Very fortunately for us, Mr. Madison has 
left us his definition in " black and white," published under 
his own eye — a definition framed for the very purpose of tell- 
ing the People of the United States what is a republican 
government, while the question of adopting the Constitu- 
tion was pending their decision. At that precise period it 
was that Mr. Madison, Mr. Jay, and Mr. Hamilton under- 
took, jointly, the task of defending and explaining the Fe- 
deral Constitution, in a series of essays, which were after- 
wards collected together, and published in a volume enti- 
tled, " The Federalist," &c* From an article of Mr. Madi- 
son in this book, we will now present an extract. And 
Mr. Madison was a prominent member of the Convention 
by whom the Constitution had been framed and submitted 
to the States. 

"Number XXXIX," of the Federalist, " by James Madi- 
son," contains the following: 

" The first question that offers itself is, whether the general form and 
aspect of the government be strictly republican? It is evident thatno 
other form would.be reconcilab e "with the genius of the people of 
America ; with the fundamental principles of the Revolution ; or with 
that honorab'e determination which animates every votary ol FREE- 
DOM, to rest a.'.l our political experiments on the capaciiy of MAN- 
KIND for SELF-GOVERNMENT. If the plan of the Convention 
therefore, be found to depart from the republican character, its advocates 
must abandon it, as no longer defensible." 

The reader will please notice, in this paragraph, (1) that 
it is a " republican form of government" that Mr. Madison 
is intent on describing : (2) that he identifies such a form of 
government with, ii thefundamenial principles of the revo- 
lution" — its self-evident truths, and inalienable human 
rights, (3) with "freedom ;" and (4) with a recognition of 

* "The Federalist, on the New Constitution, written in the year 17S6, by 
Mr. Hamilton, Mr. Madison, aad Mr. Jay," &c. &c. 



CHAP. til. STRICT CONSTRUCTION. 51 

* { the capacity of mankind for self-government." But Mr. 
Madison proceeds : 

" What then, are the distinctive characters of the republican form ? — 
Were an answer to this question to be sought, not by recurring to prin- 
ciples, bat in the application of the term by political writers, to the con- 
stitutions of different States, no satisfactory one would ever be found. — 
Holland, in which no particle of the supreme authority is derived from 
the people, has passed almost universally under the denomination of a 
republic. The same title has been bestowed on Venice, where absolute 
power over the great body of the people is exercised, in almost an ab- 
solute manner, by a small body of hereditary nobles. Poland, which is 
a mixture of aristocracy and of monarchy, in their worst forms, has 
been dignified with the same appellation. The government of England, 
which has one republican branch only, combined with a hereditary aris- 
tocracy and monarchy, has, with equal impropriety, been frequently 
placed on the list of republics. These examp'es, which are nearly as 
dissimilar to each other as to a genuine republic, show the extreme in- 
accuracy with which the term has been used in political disquisitions." 

The American and modern meaning of the word "repub- 
lican" according to Mr. Madison, is widely different from 
the meaning which some European writers of former times 
had put upon it — a consideration which is of importance to 
be kept in mind. Mr. Madison proceeds still further : 

"If we resort for a criterion, to the different principles on which dif- 
ferent forms of government are established, we may define a republic 
to be, or at least may bestow that name on, a government which derives 
all its powers directly or indirectly from the great body of the people, and 
is administered by persons holding their offices during pleasure, for a 
limited period, or during good behavior. It is essential to such a gov- 
ernment, that itbe derived from the greit body of the society, not from, 
an inconsiderable proportion, OR, a favored class of it ; otherwise a hand- 
ful of tyrannical nobles, exercising their oppressions by a delegation of 
their powers, might aspire to the rank of republicans, and claim for their 
government the honorable title of republic. It is sufficient for such a 
government that the persons administering it be appointed, either di- 
rectly or indirectly, by the people, and that they hold their appoint- 
ments by either of the tenures just specified ; otherwise, every govern- 
ment in the United States, -as well as every other popular government 
that has been or can be well organized or well executed, would be degra- 
ded from tlie republican character.'" 

Very evidently a slave Statu can not be a republic, ac- 
cording to the definition of Mr. Madison. It is essential to 
a republican form of government, says Mr. Madison, that 
its power " be derived from the great body of the society; 
not from an inconsiderable proportion ; OR" from " A FA- 
VORED CLASS OF it," The disjunctive "or" expres- 
ses distinctly, Mr. Madison's denial that a State can have 
"a republican form of government" whose power is deriv- 
ed from "a favored class," although that favored class may 
be even a majority of the inhabitants. The holding of the 
power by "a favOred class" is inconsistent with the "re- 
publican character" of the government. In every slave 
State, the slaveholders, or, if you please, the whites, are " a 
favored class" who hold all the political power ; " exercis- 



52 AMERICAN CONSTITUTIONAL LAW. 

ing their oppressions by a delegation of their powers." In 
some of the States the whites are a minority, in all of them 
the slaveholders, who substantially wield the State govern- 
ments, are. And in the aggregate of all the slave States, 
these " tyrannical nobles" are comparatively, a " handful," 
being less, by estimation, than two hundred and fifty thou- 
sand, in the thirteen slave States, among the seven mil- 
lions of inhabitants of those States, and in the presence of 
nearly three millions of slaves. So that the actual slave- 
holders, the only really "favored class" in the slave States, 
and on whose behalf this " oligarchy" is maintained, are 
less than one tenth as numerous as the slaves' to whom they 
deny all the essentia] rights of humanity, as well as politi- 
cal power ! If neither Holland, nor England, nor Poland, 
nor Venice, may be called republics — because of their aris- 
tocracies ard their monarchies, what shall be said of our 
slave States ? 

Will it be said that Mr. Madison was treating of Federal 
and not of the State governments? That he had no refer- 
ence to the slave States ? or to slavery ? That he did not 
mean to deny the republican character of the slave States ? 
That he would have resisted any such application of his 
doctrine ? 

Some of these statements would first need to be proved. 
But granting, for the argument's sake, that they* were all 
true — what then ? It would only make the testimony of 
Mr. Madison the more available for our purpose. For it 
would be giving us the testimony, of an opponent, to the 
verity of our premises ! We were not citing Mr. Madi- 
son's opinions about our conclusions ! • No. Nor about the 
intentions of the framers of the Constitution. We only 
sought from him a definition of the phrase " republican form 
of government.' 1 '' That definition he has furnished. And 
all impartial men will see that, whatever he intended, or 
whether he intended anv thing at all, in relation to this 
subject, his ;!efinition does as a matter of fact, exclude slave 
States from the list of republics. Incidental testimony, or 
testimony against the interests or the opinions of the wit- 
ness, is the most unimpeachable testimony that can be pro- 
duced. If Mr. Madison's opinions of the subject of sla- 
very and its remedy were altogether coincident with our 
own, or if Mr. Jefferson's were, we should be charged with 
citing the testimony of " fanatics," the testimony of our 
own partisans and leaders ! 

Mr. Madison was indeed treating of the Federal and not 
of the State governments. He gave a definition of a "re- 



CHAP. II. — STRICT CONSTRUCTION. 53 

publican form of government" nevertheless. It was the 
meaning of the words we were seeking after. That meaning 
is ascertained. And until it can be made to appear that the 
phrase "a republican form of government," means a govern- 
ment in favor of liberty when applied to the Federal Gov- 
ernment, but means a government in favor of slavery, and 
against liberty, when applied to the government of " every 
State in this Union," it will remain demonstrably certain 
that, by the provisions of the Constitution of 1787-9, " the 
United States shall guaranty to every State in this Union" 
the abolition and the absence of slavery. There can be no 
protest filed against this decision, that shall not amount to 
an appeal from the Court of " strict construction" to that of 
some other tribunal. 

And yet we have other witnesses to produce. Two sep- 
arate Congresses, the one immediately before, and the other 
immediately after the Federal Constitution was adopted, de- 
liberately and almost unanimously abolished and forever 
prohibited slavery, in the only territory, (as distinguished 
from States) then belonging to the national domain. And 
they saw fit, in this solemn act, to state with precision the 
ground on which this national legislation was based. And 
what was it ? They affirmed that they did so, for the pur- 
pose of " extending the fundamental principles of civil and 
religious liberty which FORM THE BASIS wherever these 
REPUBLICS, their laws, and their CONSTITUTIONS 
are erected." 

That is, they abolished and forever prohibited slavery in 
the North West Territo'ry, soon to be formed into new 
" States of this Union" because they wished to " extend" 
prospectively to those States," a republican form of Govern- 
ment" which they could not possess, if slavery remained. 
We stop not to insist now, on the very explicit declaration 
here embodied, that SLAVERY is repugnant to the CON- 
STITUTIONS of the American republics, the States. -That 
item may fill a niche in another part of our argument, if we 
should not, in the plenitude of our resources, lose sight of it. 
All we urge here, is simply the definition furnished by the 
two Congresses, just before and after the adoption of the 
Federal Constitution, of the meaning of the terms it employs 
when it speaks of a republican government. We claim that 
this, along with other items of our then current political lite- 
rature, decides the ordinary import of the phrase, und de- 
cides it against the " republican character" of a slave State. 

In attestation of the justness of this claim, we cite another 
witness : General Heath, of Massachusetts. In the Debates 



54 AMERICAN CONSTITUTIONAL LAW. 

in the Massachusetts Convention of 1798, on the question of 
adopting the Constitution of the United States, Gen. Heath 
having adverted to the subject of slavery, and to the then 
recent act of Congress prohibiting it forever in the North 
West Territory, said, " Bv their ordinance, Congress has 
declared that the new States shall be REPUBLICAN 
STATES, and have NO SLAVERY !"*— Deb. Mass. Cone, 
p. 147. 

Thus evident and certain is it that American political lite- 
rature, along with the American Dictionary, so defines "a 
republican form of government" as to exclude slave States 
from coming within the definition. 

And American writers, or those of the more modern date T 
are not alone in these views of a republic. The celebrated 
Montesquieu, one of the most distinguished of French au- 
thors, and who died more than twenty years before the De- 
claration of American Independence, in his " Esprit des 
Loix" (Spirit of Laws) first published in 1748, translated 
and republished . in England and America, and now for 
eighty years a standard work in both hemispheres, is scarce- 
ly less explicit on this subject. 

" In democracies, where they are all upon an equality, and in aristo- 
cracies where the laws ought to use their utmost endeavors to procure as 
great an equality as the nature of the government will permit, slavery 

IS CONTRARY TO THE SPIRIT OF THE CONSTITUTION, &C.' — Spirit Of 

Laws, Vol. I., Book XV., C&ap. I. 

Not only in democracies, then, but even in aristocracies, 
(which we in America do not deign to reckon among repub- 
lics,) this profound writer on the Spirit of the Laws regards 
slavery to be unconstitutional, from the very nature of 
the government ! Yet Montesquieu was educated, and wrote, 
under the old French Monarchy ! Do our American defini- 
tions of "a republican form of government" fall below the e 
of a Montesquieu ? Does the definition, in America, now, 
include less of the ideas of liberty, equality, and inalienable 
human rights, than it did in Europe a century ago ? We 
are only inquiring after the meaning of words. But impor- 
tant changes in the meaning of words may scmetimes reveal 
to us impoitant changes in something else. The meaning 
of " a republican form of government" in this country, in 
1789, is sufficiently ascertained. On the present and rising 
generation it may depend, whether it shall long retain any 
meaning at all ! 

We have some further definitions to adduce. 

•Without a direct violation of this ordinance, no fugitive slave can be arrest- 
ed in any of the States formed out of the North-Western Territory. This cir- 
cumstance has been noticed by James G. Bibnky and others. 



CHAP. II. — STRICT CONSTRUCTION. 55 

Can that be a republican government which is not even a 
free government ? Some limited monarchies — that of Eng- 
land, for example — are sometimes claimed to be free gov- 
ernments, by those who would not venture to call them re- 
publics. This question settled, we have another. Can that 
be a free government that does not secure and maintain 
freedom of speech and of the press? This latter question, let 
the slave State of Virginia herself answer. 

" The freedom of the press is one of the great bulwarks of liberty, 
and can never be restrained, but by a DESPOTIC GOVERNMENT." 

All State Governments, then, that do restrain the freedom H 
of the pres ; , are " despotic governments," and not republics. 
So says the State of Virginia. But what slave State does 
not restrain freedom of the press ? *If there are some of 
them in which such freedom is not formally prohibited, in 
which of them is it maintained and preserved ? 

The statutes of Louisiana, Tennessee, and other slave . 
States, including Virginia herself as adverted to, in our first 
•chapter, furnish sufficient answers to these questions. And 
3'et the Constitutions of Delaware, Maryland, North Caroli- 
na, South Carolina, Georgia, Louisiana, Kentucky, Tennes- 
see, Mississippi, Alabama, and Missouri, (all of them slave 
States) to say nothing of the Constitutions of the non-slave- 
holding States, are full and explicit in affirming the inviola- 
ble rights of free speech and a free press. By their own 
definitioji q{ a republican government, these States therefore, 
or such of them as do not maintain this freedom, are not 
republican States, and the United States have guarantied, 
and warranted, on their behalf, that they shall become so. 

We can afford but little room, here, for further quotations 
from the highly authoritative political literature of our coun- 
try by which the meaning of the phrase "republican form of 
government" is fixed and defined. But there is one speci- 
men now before us, so full and entire, that we must give it 
a place. 

"We the People, hereby ordain and establish this Constitution of Gov- 
ernment, for the State of Delaware. Through Divine goodness ALL 
MEN have by nature the rights of worshipping and serving their Crea- 
tor according to the dictates of their consciences, of enjoying anddcfcnd- 
ing life and LIBERTY ; of ACQUIRING and protecting reputation and 
PROPERTY, and in general of obtaining objects suitable to their condi- 
tion, without injury to one another, and as these rights are essential to 
their welfare, for the due exercise thereof, power is inherent in them;— 
and THEREFORE, ALL JUST AUTHORITY, in the political institu- 
tions of society, is derived from the PEOPLE, and established with their 
consent, to advance their happiness, and they may, to this end, as cir- 
cumstances require, from time to time, alter their Constitution of Gov- 
ernment." 

The heaven-derived right of ALL men to enjoy religious 



56 AMERICAN CONSTITUTIONAL LAW. 

and civil LIBERTY, to acquire and hold PROPERTY,are 
here explicitly made the very FOUNDATION of those 
"political institutions" whose " authority" is " derived from 
the people" — that is to say — " republican forms of govern- 
ment." The connecting word ** therefore" expresses this 
idea, and makes the paragraph as a whole, equivalent to a 
declaration that WITHOUT the security of civil and reli- 
gious liberty to "all men? including their right to acquire 
and possess property, such " political institutions" as " re- 
publican forms of government" could not exist. 

By a less rigid definition and "strict construction" of a 
"republican form of government," it might be found difficult 
to establish the claims of our American slave States, or many 
of them, to the character of republics. No one, certainly, 
can question the correctness of that part of Mr. Madison's 
definition, which says, " it is essential* to such a government 
that it be derived from the great body of the society, not 
from an inconsiderable proportion of it." A State, then, gov- 
erned by a minority can not be a republic. But some of the 
slave States, and it is believed, most of them, are governed 
by minorities. In South Carolina, Mississippi, and Louis- 
iana, the slaves themselves, (exclusive of the free people of 
color,) outnumber the white population. When it is remem- 
bered that no colored person can have any share in the gov- 
ernment, though that class are numerous in some of the 
States, and also that very few of the still more numerous 
class of non-slaveholding whites, (who, in those States, are, 
for the most part, very degraded,) can participate in the 
franchise or hold office, it must be evident that, in most of 
the slave States, the government is in the hands of the mi- 
nority, and that this minority are slaveholders. 

The whole number of slaveholders in the United States 
has been estimated at not more than two hundred and fifty 
thousand. Yet these are distributed in an aggregate popu- 
lation of above seven millions, in the thirteen slave States, 
the Territory of Florida, and Federal District, according to 
the census of 1840.1 This exhibits a proportion of one to 
twenty-eight. Yet the slaveholders govern. Their propor- 

* This italicising is Mr. Madison's in the paragraph before quoted from the 
Federalist. 

t The census of 1840 exhibits the following. South Carolina. White persons, 
259,084. Free colored persons, 8,276. Slaves, 327,038. Mississippi. Free white 
persons, 179,074. Free colored peTsous, 1,369. Slaves, 195, 'J 11. Louisiana, 
White persons, 158,457. Free colored persons, 25,502. Slavs, 16S,452. Sup- 
pose now, in these States, the slaves ind free colored persons should form a 
constitution of a " republican form of government," elect offieers, and demand 
the Federal guaranty. What must Congress do? "Strict construction" re- 
members that the Constitution says nothing about SLAVES, and nothing about 

COLOR. 



CHAP. II. STRICT CONSTRUCTION. 57 

tion to the whole adult male population, we can only con- 
jecture or estimate ; but very evidently they must be a small 
minority. The Constitutions of many of these States^ mak- 
ing a landed estate a qualification of voters, and especially 
of legislative and executive officers, have virtually secured 
the supremacy of slaveholders. " Fifty acres of land'' is re- 
quisite, in several States, to make a voter. A Governor of 
South Carolina, must be worth £1,500 sterling, and a Sena- 
tor £300 " of a settled freehold estate," and a Representa- 
tive " a settled freehold estate of five hundred acres of ?and 
and£e?z negroes, or a real estate of £150," &c, &c. In Ten- 
nessee, the Governor must own 500 acres of land, and a 
Senator 200. 

Whether, therefore, we define a republic by its principles, 
its usages, its protection of human rights, or its sovereignty 
of the People, or of a majority of them, the slave States can 
not be called republics. 

We dismiss this topic with a single inquiry. If, by the 
words and the phraseology of this clause, the United States 
have not guarantied to every State in this Union an exemp- 
tion from the extremest possible departure from a republi- 
can government; have not warranted and secured ti.em 
from a government that shall chattelizeits citizens, "trans- 
forming some into despots rind others into enemies," permit- 
ting "one-half its citizens to trample on the rights of the 
other," — then we demand what it is that these words and 
phrases do signify ? And what " form of government" the 
United States may not permit to be established and main- 
tained in the different States, without a breach of the guar- 
anty ? 

Security of Liberty : — " Due Process of Law." 

The Constitution prepared by the Convention, in 1787, 
amo;.g its declared and leading objects, as set forh in its 
first sentence, had distinctly enunciated its intent to "secure 
the blessings of liberty to ourselves, and our posterity." 
Yet the People, it seems, were desirous of some more spe- 
cific declaration of the manner in which this security was to 
be extended to them. So says the record of those times. 

" The Conventions of a number of the States, having, at the time of 
their adopting the Constitution, expressed a desire, in order to prevent 
misconstruction or abuse of its powers, that further declaratory and re- 
strictive clauses should be added. Congress, at the session begun and 
held in the city of New York, on Wednesday, the 4th of March, 1789, 
proposed to the legislatures of the several States, twelve amendments, 
ten of which onlv were adopted." — Federalist, page580. 

Among these amendments was the one from which we 



58 AMERICAN CONSTITUTIONAL LAW. 

extract the following. We copy so much as relates to our 

subject. 

" No person shall be held to answer for a capital or otherwise infamous 
crime, unless on presentment or indictment of a grand jury," &c, &c, 
* * * « «Nor be deprived of life, LIBERTY, or propirty, icithout 
DUE PROCESS OF LaW," &c, &c, &c— Amendments, Article V. 

It is to be observed and kept in mind that these " amend- 
ments" to the Constitution, added as they were, after the 
adoption of the original instrument itself, possess of necessi- 
ty, and in their own nature, a corrective, a revisory charac- 
ter. They are not simply additions to the instrument ; they 
are, what they are denominated, "amendments," alterations 
perhaps, — changes. If one clause or article of the original 
document had appeared to conflict, or had been found to 
conflict with another, it might have seemed difficult to de- 
cide upon their conflicting claims. For one clause, (it might 
be thought,) should be to be regarded as of equal authority 
with another. Not so, when one of the conflicting clauses 
should be found in the original instrument, 'and the other in 
an "amendment." The "amendment" very manifestly, 
takes precedence, and displaces, annuls, repeals, abrogates, 
erases, whatever in the original instrument is found to con- 
flict vnth it. 

Suppose it should have been fuund, then, or suppose we 
should now £• rant, for the argument's sake, that all the 
parts of the original Constitution, already examined, arein 
favor of slavery, and none of them in favor of its abolition : 
suppose it were an admitted fact, that the clauses concern- 
ing " persons held to service and labor" — concerning " ap- 
portionment of representatives and direct taxes" — concern- 
ing " migration or importation" — concerning the "suppres- 
sion of insurrection" — " protection against domestic vio- 
lence" — and concerning " the reserved rights of the States" 
— suppose, we say, it were certain that each and every one 
of these clauses did "guaranty" or did tolerate by "com- 
promise" the existence of Southern slavery : — suppose fur- 
ther, that the original Constitution had contained no declar- 
ation of the purpose and intent to " secure the blessings of 
liberty," union, justice, tranquility, common defence and 
general welfare — bad contained no grant to Congress of 
powers for the accomplishment of these ends, no declaration 
that the " Constitution of the United States and laws of 
Congress, made in pursuance thereof," should be held to 
be the " supreme law of the land" — suppose Congress had 
been clothed with no powers over " commerce with foreign 
nations, and among the several States" — suppose the Uni- 



CHAP. II. STRICT CONSTRUCTION. 59 

ted States had not guarantied " to every State in this 
Union a republican form of government,'* or that such a 
guaranty did not amount to a guaranty against slavery — 
what then ? If, among the subsequent " AMEND- 
MENTS" to the Constitution, there can be found a single 
clause, or fraction of a clause, that either restricts or abol- 
ishes slavery by its own inherent efficacy and operation, or 
authorizes Congress, or enables the National Judiciary to 
restrict or abolish slavery, then that clause or fraction of a 
clause, being an " amendment" an alteration, a re-peal of all 
that shall be found to conflict with it in the original instru- 
ment, and supplying the omissions and defects of the same, 
provides for the abolition or restriction of slavery as effectu- 
ally as if, in all the preceding particulars, the Constitution, 
as first adopted, had been the reverse of what our supposi- 
tion has described. 

This being premised, we proceed to consider this fifth. 
Article of 'Amendments. The supposition just now made, 
that the original Constitution had "guarantied slavery," 
(if our opponents choose to retain it,) will do us no manner 
of harm, here. We are now to inquire after the meaning 
of an amendment. And if it were true that the People of 
the United States had pledged themselves to suppress in- 
surrections of slaves, to return fugitives from slavery, and 
in other ways to become the drudges and tools of the " pe- 
culiar institution," thus involving themselves in its guilt, 
its disgrace, and its dangers ; such a circumstance, one 
would think, might well entitle them to have some share in 
defining the slavery they had "guarantied," — to assist in 
prescribing its tenure and its conditions — to declare who 
shall " be deprived of their liberty," and by what " process" 
they should be thus deprived of it. Otherwise they could 
not know what they had <; guarantied," nor whether they 
themselves and their posterity might not become the victims 
of the guaranty ! 

But whether the original Constitution contained a guar- 
anty of slavery or not, it was confessedly thought important 
to define the conditions of liberty, and to say in what man- 
ner a " person" living under our government, could be 
"deprived" of so inestimable a blessing. The clause be- 
fore us contains that definition. What is its meaning 1 
What do the words say, in their ordinary import and accep- 
tation ? A " strict construction" is all we ask for, now, 
and that we shall insist upon. 

" No person shall be deprived," &c. That is, no " indi- 
vidual human being, consisting of body and soul" — (as 



60 AMERICAN CONSTITUTIONAL LAW. 

Noah Webster hath it) — no " man, woman or child" "shall 
be deprived of liberty, &c, without due process of law." 

Shall be deprived of liberty — i. e. " the power of acting 
as one thinks fit, without restraint or control, except from 
the laws of nature." — Noah Webster. 

" Without due process of law." — " Process. — In Law : — 
the whole course of proceeding, in a cause, real or personal, 
civil, or criminal, from the original writ, to the end of the 
suit.''' — Noah Webster. 

In order to understand the full power and significancy 
of this phrase, " due process of law" which the writer of 
this Amendment took of course, from the vocabulary of our 
Courts of Justice, and from the accredited law literature of 
our language, we must trace it back to its early use, and 
fohow it down to the present time. 

" These words," says Alvan Stewart, " from the days of King John, 
in the Vale of Kunney Meade, to the day of the final adoption of the 
Feueial constitution, have been employed and understood, as ha- 
ving certain and fixed ideas." " The sturdy barons and wise men of 
England, compelled a volatile liing to subscribe Magna Charta 500 
years ago, containing the words of our 'Article,' and Irom that day to 
this, every Englishman and American has claimed, as a part of his in- 
heritance and birthright, the invaluable principle that ' no person shall 
be deprived of his life, LIBERTY, or property, without due process of 
law.' In fact this constitutional provision is nothing but one of those 
invaluable principles, priceless in character, drawn Irom the vast quar- 
ry of the common law." "It is believed that no lawyer in this coun- 
try or England, who is worthy the appellation, will ueny that the true 
and only meaning ol the phrase ' due process of law' is an indictment or 
presentment of a Grand Jury, of not less than twelve nor more than 
twenty-three men, a trial by a petit jury of twelve men, and a judgment 
pronounced, on the finding of that jury, by a Court.-*'* 

Judge Story, in his Commentaries upon the Constitution 
of the United States, (as cited by Alvan Stewart, Esq.,) 
speaking of this sentence of this Article of the Constitu- 
tion, says : — 

" The other part of the Clause is but an enlargement of the language 
.of Magna Charta, e nec super cum ibimus, nee super cum mittimus, nisi per 
legale judicum parium suorium vel per legem terra,'— neither will we pass 
upon him, or condemn him, but by the tauful judgment of his peers, o? by 
the law of the land. — Lord Coke says that these latter words, 'per hgem 
terra,' (by the law of the land,) mean < by due process of law,' that is, 
without due presentment, or indictment, and being brought in to an- 
swer thereto, ' by due process of law.' So that this Clause, in effect, 
affirms the right of trial, according to process and proceedings of com- 
mon law." 

The terms employed in this amendment are thus defined, 
and its meaning ascertained. It says that " no individual 
human being, consisting of body and soul ; no man, woman, 
or child," in these United States, or under the sheltering 

* See Constitutional Argument, on this Clause, hy Alvan Stewart, Esq., in 
the " Friend of Man," October 18, 1837, from which our argument, on this 
topic, is chiefly taken, in a condensed and modified form. 



CHAP. II. — STRICT CONSTRUCTION. 61 

wing of its Constitution, shall be deprived of liberty, (of the 
power of acting as one thinks fit, without restraint or con- 
trol, except from the laws of nature,) without due process of 
law, without indictment by a grand jury, trial and conviction 
by a petit jury, and corresponding judgment of a Court. 

Every "individual human being, with a body and a soul ; 
man, woman, or child/' within the United States, deprived 
of liberty without indictment, jury trial, and judgment of 
Court, is therefore unconstitutionally deprived of liberty. 
A " strict construction" of the Constitution can result in no 
other decision than this. For this is taking the Amend- 
ment according to the literal meaning of the words. 

" If this be true," says Mr. Stewart, "any judge in the United States, 
who is clothed with sufficient authority to grant a writ of Habeas Corpus, 
and decide upon a return made to such a writ, on the master and slave 
being brought before said judge, to inquire by what authority he, the 
master, held the slave, if the master could not produce a record of con- 
viction, by which the particular slave had been deprived of his liberty, 
by indictment, trial, and judgment of a Court, the judge would be obli- 
ged under the oath which he must have taken, to obey the Constitution 
of his country, to discharge the slave, and give him his full liberty." 

Come forward, now, ye claimants of a slavery under 
" guaranty of the Constitution of the United Slates !" — 
And come, ye claimants of "the compromises of the Con- 
stitution" in favor of slavery ! What say you ? Do ye 
still continue to urge the claim ? If so, prepare to abide the 
result of your claims. If there are any such compromises 
or guaranties in the original instrument, (the Constitution 
of 1787-9,) then, along with those " compromises" or 
"guaranties" you must take the provisions of this Amend- 
ment, which (in case the Constitution has "recognized" any 
slavery at all) have specifically defined the slavery thus re- 
cognized, and fixed the bounds which it can not pass. — 
Search now for your constitutional slaves, deprived of lib- 
erty, by " due process of law /" By personal indictment, 
trial, verdict, and judicial sentence ? Where are they ? 
Or who is the claimant of such a slave ? You claim as 
strict constructionists, your " pound of flesh, according to 
the bond i" Take it then, ■ ut take the precise, the specified 
pound, and take not a fraction more. 

More than half a century has rolled by, since this 
Amendment became the " supreme law of the land" But 
no " individual human being" now held as a slave has ever 
been " deprived of liberty by due process of law." No one 
will pretend this. On the principle of " strict construction" 
then, the principle of abiding by the literal meaning of the 
words of the Constitution, the Congress of the United States 
are authorized and called upon, by the facts of the case, to 



62 AMERICAN CONSTITUTIONAL LAW. 

pass a declaratory act, recapitulating the facts, and declaring 
each and every "individual human being, with a body and 
a soul, man woman, or child," now held in bondage, in the 
United States, yet not " deprived of liberty, by due process 
of law," to be free. "All presumptions are to be made in 
favor of liberty," and therefore all who can not be proved to 
have been " deprived of liberty by due process of law" must 
be adjudged free. 

If the " peculiar" claim shrinks from this judgment, it 
must abandon "strict construction" altogether — must take 
its cause out of that Court, or wait the proper time for filing 
an appeal to another tribunal. 

More than this it must do. It must take especial care not 
to urge either its pretended " compromises" or its » guaran- 
ties" of the "peculiar" interest, either before the Court of 
" strict construction" or any xohere else ! For the moment it 
does this, it endorses a principle that arms this same notable 
fifth article of Amendments, with all the formidable powers 
we have claimed for it, and there is no escape from its grip. 
Establish, by any principle of construction, the constitutional 
guaranties and compromises of slavery in the original Con- 
stitution, and you establish both the principle and the fact 
that the United States and the Federal Government, are 
responsible, politically and morally, responsible to the Peo- 
ple, to posterity, and to high heaven, for the continued exist- 
ence of that gigantic crime and curse. And how shall the 
United States, and the Federal Government escape from 
those responsibilities or honor them ? In no way that we 
can think of, (in such a case,) more conveniently or legally, 
more effectually or more speedily, than by taking the claim- 
ants at their word: conceding to them, (if they will have it 
so,) that the original Constitution contained the " compro- 
mises" and the " guaranties" claimed — but insisting withal, 
that the fifth article of Amendments, with its paramount 
authority over the compromises and guaranties of the ori- 
ginal instrument which it now modifies and changes, in 
virtue of its amendatory powers, has defined, restricted and 
circumscribed the slavery thenceforth to be compromised or 
guarantied, confining it within the constitutional limits there- 
in specified, viz : — the enslavement of those deprived of their 
liberty " by due process of law." 

If the word "person" in the original instrument, means a 
slave, then the word "person" in the fifth article of the 
Amendments means a slave. If the condition of the slave 
is described by the phrase " persons held to service and labor," 
then the condition of the slave is described in the words, 



CHAP. II. STRICT CONSTRUCTION. 63 

"iiV^ person shall be deprived of liberty, without due process 
of law" And so the construction of the original instrument, 
relied upon to establish slavery, abolishes it, when applied 
to the amendment.* 

Another dilemma is thus presented, on either horn of 
which, at its pleasure, the " peculiar" claim is at liberty to 
swing. If the Constitution has "guarantied or has 
compromised" with slavery, then it has DEFINED it: 

AND THE DEFINITION IS RECORDED IN THIS FIFTH ARTICLE OF 

AMENDMENTS. 

It will be of no use to plead in the Court of "strict con- 
struction" that such could not have been the intentions of 
those who drafted this clause. The question here is not 
what they intended, but what they the People have done, by 
adopting that clause. It tells its own story and there is no 
escape from its meaning. 

Many a litigant has found, to his co.st when in Court, that 
the instrument to which he had subscribed his name, a long 
time before, expresses something that he did not. intend, when 
he signed it. But the Court decides according to the ideas 
expressed in the document, and not according to his own state- 
ment of his intentions. We are in Court, now, and a Court, 
too, that always sticks close to the " strict letter of the law." 

Slavery in the Territories and Federal District. 

" The Congress shall have power to dispose of, and make all needfid 
rules and regulations respecting the territory or other property belonging 
to the United States, and nothing in this Constitution shall be so con- 
strued as to prejudice any claims of the United States, or of any particu- 
lar State."— Constitution V. S., Art. IV., Sect. 3, Claused. 

The next previous clause had provided for the admission 
of new States into the Union. i One of the earliest acts of 
Congress after the organization of the Government, under 
the Federal Constitution, was the act forever prohibiting 
slavery in the North West Territory, the only Territory then 
belonging to the United States. And no demur has ever 
been made on the ground that Congress did not possess the 
constitutional power. This would seem to settle the ques- 
tion, if any question of the kind could be raised, whether 
Congress possesses power to abolish slavery, in any other 
Territory or District belonging to the United States. But 
in respect to our present Territory of Florida, including the 
States formed out of the Territory of Louisiana, and the 
District of Columbia, we are authorized to occupy even 
higher ground. We present a view T of this ground in the 

* Vide 4th of July Address by H. E. Smith, Esq. at West Galway, 1844, in Al- 
bany Patriot, of Aug. 14. 



64 AMERICAN CONSTITUTIONAL LAW. 

words of some Resolutions adopted by a Liberty Convention 
in Ohio, and afterwards at similar conventions, at Buffalo, 
and elsewhere. 

"That the laws of France in virtue of which slavery ex- 
isted in the Territory of Louisiana; the laws of Spain, in 
virtue of which slavery existed in the Territory of Florida; 
and the laws of Virginia and Maryland in virtue of which 
slavery existed in the District of Columbia, ceased to be in 
force at the moment when said Territories and District were 
ceded to the United States, and consequently every slave 
therein, became, at that moment, free. 

" That all acts of Congress, for the continuance of slavery 
in the Territories of Louisiana and Florida, and in the Dis- 
trict of Columbia, after the cessions, became null and void, 
not only by reason of the want of power in Congress to pass 
such acts, but because they are in direct conflict with the 
fifth article of the Amendments of .the Constitution, which 
declares that ' no person shall be deprived of life, Liber- 
ty or property, without due process of Law,' and also in 
conflict with the Preamble of the Constitution which declares 
the establishment of Justice to be one of the chief objects 
of its formation. 

"That all constitutional provisions and laws of the States 
created within the limits of the Territory of Louisiana, and 
all acts of Congress admitting such States into the Union, 
so far as such provisions, laws, or acts, authorize or sanction 
slaveholding, are also null and void, because in conflict with 
the same article of the Amendments." 

The argus eyes of the slave power and its sycophants, 
northern and southern, have never pretended to discoverany 
provision, in any article, section, or clause in the Constitu- 
tion of the United States, by virtue of which Congress or 
the United States are vested with the power of establishing 
slavery any where. " Strict construction" or any other sort 
of "construction" may search the instrument, in vain, for any 
thing of that description, or looking, even remotelv in that 
direction — to be construed ! And the tenth article of Amend- 
ments may remind us that the Federal Government holds 
no powers not conferred in the Constitution. We are a little 
curious to know by what arguments those who deny the 
power of Congresslo abolish slavery, will undertake to prove 
the power of Congress to create slavery. But if it has no 
power to create slavery, then slavery in the Federal District 
and Territories is unconstitutional, and the Federal Courts are 
bound, whenever a case comes before them, thus to decide. 

If slavery, in Florida and the District of Columbia, is con- 



CHAP. II. STRICT CONSTRUCTION. 65 

stitutional, then slavery might be established by Congress 
at West Point, or any other spot, at which " forts, magazines, 
arsenals, dock-yards, and other needful buildings'' of the 
United States may be constitutionally " erected," and slave- 
ry would then be constitutional at all those places — a result 
too absurd for belief. Examine the Constitution and see if 
it be not so. 

The Constitution and the District of Columbia. 

" The Congress shall have power" — " to exercise exclusive legislation 
in all cases whatsoever, over such District (not exceeding ten miles square) 
as may, by cession of particular States, and the acceptance of Congress, 
become the seat of government of the United States, and to exercise like 
authority over all places purchased, by consent of the legislature of the 
State in which the same shall be, for the erection of forts, magazines, ar- 
senals, dock-yards, and other needful buildings.^ — Art. I, Sect. 8, Clausel6. 

" Like authority." These words are too plain to admit 
or require any explanation. Can Congress, under this clause, 
or by any other warrant, establish slavery at the navy-yard 
in Brooklyn, or at the arsenal in Springfield ? If not, then 
it can not in the District of Columbia, and slavery is illegal 
there.* 

Maintaining, as we do, the power of Congress to abolish 
slavery even in the States, and denying, as we do, the pre- 
sent legality of slavery in the Federal District and Territory 
of Florida, &c, &c, we are scarcely able to enter, with much 
interest, into the question that has been so strangely mooted 
of late years, whether Congress has power to abolish slavery 
in the District of Columbia ! But if any one wishes to exa- 
mine that question, on the old grounds, it is pertinent to 
notice the " exclusive legislation in all cases whatsoever" 
which Congress, under the Constitution, exercises over the 
District. 

"Exclusive.* No other legislative power on earth pre- 
tends to any legislative power over the District. Those who 
deny the power of Congress to abolish slavery in the District 
never undertake to tell us what legislature does possess that 
power. 

" Exclusive legislati n" we are sometimes reminded, in 
this connection, does not mean unlimited legislation. Cer- 
tainly it does not ; and this is the very reason why Congress 

* The reader is doubtless apprised of the fact that after the cession of the 
District of Columbia by Virginia and Maryland, and just before the appointed 
time for its coming into possession of the United States, the Congress of the 
United States enacted a law re-enacting in a lump, the laws of Maryland, for 
that part of the District east of the Potomac, and the laws of Virginia for that 
part of the District west of the Potomac This act was an unconstitutional 
«stablishment of slavery in the District, without which act the slaves would 
have been freed. 

5 



66 AMERICAN CONSTITUTIONAL LAW. 

does not possess power to create slavery in the District. 
But " exclusive legislation, in all cases whatsoever," does 
mean all such just and righteous legislation as is appropriate 
and proper for all other civil governments to exercise. So 
that there is no escape from the conclusion that Congress 
can constitutionally abolish slavery in the District of Co- 
lumbia, but by affirming (as some have done) that no govern- 
ment on earth has a right to abolish slavery I And, with 
characteristic consistency, this ground is assumed by those 
who deny the inalienable rights of man by affirming that 
" ivhat the law makes property IS property ;" so that, though 
legislation can create slavery, yet legislation can not abolish 
it ; in other words, that man possesses but one inalienable 
right, and that this is the right of slaveholding — the right 
of invading with impunity all the equal rights of his brother ! 
It can not be expected by any reasonable person that we 
should waste time in the useless attempt to reason with 
such, or to make their absurdities more manifest than they 
already are. 

We say nothing here, to the plea of " implied understand- 
ings" — " consent of citizens of the District," the " wishes of 
Virginia and Maryland," &c. &c, because " strict con- 
struction" rules all such considerations out of the Court. 
It will not permit the jury to hear them. In another place 
we may look at them, and a glance should suffice. If any 
one, however, would be conducted over the whole ground, 
and feel his way, step by step, let him peruse Theodore D. 
Weld's " Powerof Congress over the District of Columbia," 
originally published in the New York Evening Post, under 
the signature of Wythe — a work hitherto unanswered, and 
containing a mass of important information, along with a 
force and demonstration of argument that will sufficiently 
account for the absence of a reply. 

One or two things require to be noted, before dismissing 
this topic. There are no " reserved rights of the States" to 
be pleaded, on behalf of the slaveholders of the District. — 
Nor, (whatever may be said of the grounds we have taken 
on the clause concerning "persons held to service and labor 
in one State, under the laws thereof, and escaping to ano- 
ther") can any persons, under that clause, be " delivered up, 
on the claim of the party to whom such service or labor may 
be due," in the case of such as, instead of escaping from 
one State to another, shall escape to or from the Federal 
District. That soil, at least, is as sacred from the pollu- 
tion of legalized, constitutional slavery, as is the soil of 
England itself. Slaves can not breathe there. There is 



CHAP. II. — STRICT CONSTRUCTION. 67 

no earthly power that can, there, legally enslave them. The 
moment they touch that ten mile square, they are, legally, 
as free as the President of the United States himself, and 
can no more be lawfully enslaved there, ox carried away into 
slavery, or made slaves on leaving the Federal District, 
than the President can. Whenever law is properly admin- 
istered, by a competent and faithful Judiciary, this decision 
will stand by the side of that of Lord Chief Justice Mans- 
field, in the case of John Somerset. 

This is manifestly true, if Congress had no constitutional 
authority to create slavery in that District, there being no 
slavery there, except by authority of Congress. But if Con- 
gress has power to create slavery there, it has power to abol- 
ish it — power to repeal the law that created it. Another 
dilemma, for the benefit of whom it may concern. 

Restrictions on State Power. 

Hitherto we have considered the duties and powers of the 
Federal Government, under the Constitution of 1787-9, in 
relation to the existence of slavery, whether for its guaranty 
or its abolition. We are now to inquire whether the same 
Constitution has inhibited or restricted the power of the 
States to establish or maintain slavery, by any of the specific 
provisioris of that document. 

The explicit guaranty, by the United States, of a " repub- 
lican form of government" to "every State in this Union," 
has already been noticed, along with the other responsibili- 
ties of the National Legislature. And it has been shown 
that such a guaranty is equivalent to a guaranty against 
slavery. A u guaranty — an undertaking, or engagement, 
by a third person or party, that the stipulations of a treaty 
shall be observed by the contracting parties, or one of them." 
— Webster's Dictionary. 

This language implies that in coming into the Union, under 
the Federal Constitution, the several States entered into 
certain stipulations with each other, that one of those stipu- 
lations was the maintenance of a "republican form of gov- 
ernment," and that the United States guarantied the due 
observance of this stipulation, and engaged to see to it, that 
the government of each State should be republican. In the 
very act of ratifying the Constitution of the United States 
which contained this clause, " every State in this Union" 
did stipulate and agree to maintain " a republican form of 
government," and did agree that ■" the United States" shall 
see the stipulation, on the part of each State, observed. 

But this mention of a republican government was in gene- 



68 AMERICAN CONSTITUTIONAL LAW. 

ral terms. We shall see now whether the same Constitu- 
tion imposes any particular prohibitions or restrictions upon 
the States, by provisions that go into details, and vitally 
affect the republican character -of a. State. 

Article I., Section 10, imposes a variety of restrictions up- 
on the States — some of them incidental to their new position 
as members of a more extensive government, entrusted with 
the foreign relations of the country, its currency, its army, 
its navy, its commercial polity, &c. With these prerogatives 
of the General Government, the States were not to interfere. 
But along with these inhibitions were others, of a different 
character, and looking directly to the security of individual 
rights, the preservation of republican equality among the 
People. 

"No State shall * * * pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts, or grant any title of nobility." — 
Art. I., Sect. 10, Clause 1. 

The next clause of the same section provides that ec No State shall * * * 
keep troops * * * in time of peace, or engage in war, unless actually in- 
vaded, or in such imminent danger as will not admit of delay." 

" Attainder. — 1. Literally, a staining, corrupting, or rendering im- 
pure; a corruption of blood. 2. The judgment of death, or sentence of a 
competent tribunal upon a person convicted of treason or felony, which 
judgment attaints, taints or corrupts his blood, so that he can no longer 
inherit lands. 3. The act of attainting." — Webster's Dictionary. 

That which the dictionary describes as the judgment or 
sentence of a tribunal, is what the Constitution says the 
State Constitutions and State Legislatures shall not enact. 
Particularly, they shall "pass no bill" — enact no statute, 
that does this thing. It may not do it, even in the case of a 
person " convicted of treason or felony." Even for those 
crimes, it may not " taint or corrupt his blood, so that he 
can no longer inherit lands." Of course it may not do this, 
in the case of a person convicted of the crime of having 
been born of a slave mother, or in the case of innocent per- 
sons, charged with no crime ! 

But every slave State has its bill of attainder, without 
which not a single slave could be held in the State ; and the 
repeal of which would be the abolition of slavery. 

Every slave in America is a human being thus attainted. 
The slave code thus attaints him. It says expressly, " Slaves 
can not take by descent." They can not be heirs. They 
can not inherit, or hold lands. They can receive and hold 
nothing by will or bequest. " The slave can hold no pro- 
perty." 

Every slave in America, not imported from abroad, (and 
such importations have been prohibited since 1808,) is a 
slave because attainted, corrupted in blood, by the slave law. 



CHAP. II. — STRICT CONSTRUCTION. 69 

It is a bill of attainder running from generation to genera- 
tion without lim.tationor end! The slave child follows the 
■condition of the mother. "The noblest blood of Virginia 
runs in the veins of slaves," and is attainted by this bill of 
attainder. The sons and daughters of Presidents, and Gov- 
ernors, and members of Congress — the " posterity" of those 
who framed and adopted the Federal Constitution " to se- 
cure the blessings of liberty to themselves and (their) pos- 
terity," are corrupted by these bills of attainder in the slave 
States, "so th.t they can no longer inherit lands," or hold 
in legal possession a dung-hill fowl or a pig! The wide 
world knows all this, and no one is so stupid or so emulous 
of being accounted an ignoramus as to call it in question. 
Where then, is the clause of the Constitution of the United 
States that prohibits the States from passing bills of attain- 
der ? Has it any efficacy, or power ? Has it any meaning ? 

"Contracts." — " No State shall pass any law * * * 
impairing the obligation of contracts." — Constitution. 

" The slave can make no contract." " No contract made 
with a slave shall be binding." " The slave can not even 
contract marriage." " A slave can make no bargain, bar- 
ter, or sale." — Laws of Slave States. 

To buy any thing of a slave is a grave offence, in some 
•of the slave States. 

The very words of the Federal Constitution; and of the 
laws of the slave States are here brought into direct and 
harsh collision. What the former forbids to be done by the 
States, the latter emphatically does. 

A merchant or a ship-master visits Wilmington, North 
Carolina. He enters into the shop cf a cooper. He finds 
the boss cooper apparently as white a man as himself. He 
contracts with him to put in order for shipping, a cargo of 
staves and heading he has just purchased. The job may 
amount to some two hundred dollars or more. The cooper, 
with his gang of hands, goes about the work. By contract 
he receives fifty dollars in advance, to distribute among his 
hands, or for other uses. The next day the cooper is miss- 
ing. It turns out that he was a slave. His master has other 
work for him. He had permitted him, for a monthly sti- 
pend, to drive his trade, for himself; but he has altered his 
mind, or a creditor has seized upon the cooper, or he is sold, 
and is on the way to Louisiana. What shall the ship-mas- 
ter do, for the fifty dollars ? Can he claim it of the cooper's 
slave-master ? No ! Can he claim it of the cooper, if he 
can find him ? No! But tchy not ? Because the State of 
Nonh Carolina has " passed a bill impairing the obligation 



70 AMERICAN CONSTITUTIONAL LAW. 

of contracts " — has enacted that no contract formed by the 
child or grand-child of a slave mother, to the thousandth 
generation, can be binding! 

A slave contracts matrimony. Is the contract honored as 
binding? No! Because the law of slavery has impaired 
the obligation of contracts. 

A slave owner is in the habit of sending an active slave 
to market, with his produce. He is even permitted by the 
master to contract sales beforehand. You bargain with 
him for a wagon load of flour, or of bacon, to be delivered 
in three days. You bargain before competent witnesses, 
and deliver some goods or money in advance. The day 
comes, and brings the market man with his load of produce ; 
but he unloads at your neighbor's door instead of yours. 
You remonstrate, but in vain. The slave master has order- 
ed the produce delivered to pay an old debt, or (more prob- 
ably) to get a higher price, or to cheat you out of your ad- 
vanced payment which he has appropriated to himself. 
Have you any redress? No. And simply because the 
State has passed a law, " impairing the obligation of con- 
tracts:'* 

A slave bargains with his master for the price of his free- 
dom. He takes his master's written agreement signed with 
his own hand; Once a year he pays him one hundred dol- 
lars, according to agreement, and takes his master's receipt. 
In ten years the whole payment is completed, and he asks 
for free papers. Can he demand them ? No. Can he get 
his money back again ? No. Do the written agreement 
and the receipts avail him anything? No. But why not ? 
Simply because the State has " passed a law impairing the 
obligation of contracts /" t 

Are such laws constitutional ? If they are, what does 
this clause of the Constitution mean? We do not stop to 
ask what it is worth ! We are in the Court of "^strict con- 
struction" now, searching after the meaning of words! 

({ Nobility." — " No State shall grant any title of nobility."— Consti- 
tution. 

But what is a title of nobility ? 

"Nobility. • * * (Among other definitions,) * * * "Distinc- 
tion by blood, usually joined with riches." The qualities which constitute 

*The case described actually occurred at Wilmington, N. C, some years 
ago, during the writer's residence there. The slaveholder was a citi2en of 
high standing, in political life. 

f Another case, of not unfrequent occurrence. More than one fugitive 
slave has come to the North, within a few years past, with all the documents 
in his possession— the written agreement, the several receipts covering the 
sum stipulated, and yet has been obliged to run from the chase of blood-hounds 
to get his freedom. 



CHAP. II. — STRICT CONSTRUCTION. 71 

distinction in rank, in civil society, according to the customs or laws of a 
country." — Webster's Dictionary. 

11 Title. — An appellation of dignity, distinction or pre-eminence, given 
to persons, as, a duke. A name, an appellation.'' — lb. 

" The institution of domestic slavery supersedes the necessity of an 
order of nobility , and all the other appendages of a hereditary system of 
government." — Message of Gov. McDuflie of South Carolina. 

That is to say, it answers, substantially, the same ends — 
is essentially, the same thing under another name. 

The slave State grants the "name," the "appellation" of 
slave owner. It grants unlimited powers and high " digni- 
ties" along with the name or " title" The " qualities whieh 
constitute" a slaveholder carry with them, and " constitute 
distinction in rank, in civil society, according to the customs 
or laws of (this) country." In some of the States, a man 
must be a slaveholder, in order to be eligible to certain offi- 
ces. It is so far a " distinction by blood" that " white" per- 
sons only can be slaveholders, and children of slave mothers 
must always be slaves, and can not be slave owners. The 
claim is founded much on the superiority of the " Anglo- 
Saxon blood" to the " African." 

The " distinction in rank, in civil society," which the 
slave owner holds " according to the customs or laws of this 
country," corresponds very nearly to that of the higher 
castes of the Asiatic nations, the feudal lords or barons, in 
the middle ages in Europe, and still retained by the nobility 
in Kussia. This parallel is frequently insisted on, by the 
advocates of slavery, in justification of the "institution" 
and in proof of its conservative character, and its patri- 
archal antiquity. The very phrase — " political institution" 
with which it is dignified by its friends, is proof that they 
claim for it the honors of "a system, a plan of society es- 
tablished by law," for the promotion of political ends.* As 
a political institution, a " system or plan of society" estab- 
lished by State legislation, it changes the whole frame-work 
of the government in those States, nay, in the United States, 
as a general government — the very thing that the clause be- 
fore us was obviously framed to prevent. As a "political 
institution" it is cherished and valued and defended by states- 
men who perfectly understand and admit the unprofitable- 
ness of slave labor. Like other political institutions of a 
similar character, it is wielded for the exclusive benefit of 
the privileged caste at the expense of all others. It ope- 
rates to withdraw political power from the mass of the peo- 
ple, the laboring population, and confer it upon a select few, 
which is the very description or definition of aristocracy, or 
government of nobles. 

*See Webster's definition of an (( Institution." 



72 AMERICAN CONSTITUTIONAL LAW. 

" Aristocracy. — A form of government, in which the whole supreme 
power is vested in the principal persons of a State." — Webster's Dictionary. 

11 The supreme power" of the slave States is vested al- 
most exclusively in those " principal persons of (the) State," 
the slaveholders, as has been shown in another connection. 
This privileged class of 250,000 — this "peculiar" "order of 
nobility" that governs the slave States, constitutes but about 
one sixty-eighth 'part of the aggregate seventeen millions of 
inhabitants of the United States. Yet this petty oligarchy 
holding its " title" to the political powers of an " order of 
nobility" by virtue of the legislation of the States wherein 
they reside, and which they control at their bidding, have 
succeeded likewise in controlling the National Government 
itself, monopolizing, almost in perpetuity, the highest offices 
in the nation, moulding the national policy and wielding the 
national resources (through the legislative, executive, and 
judicial departments) for the exclusive benefit and aggran- 
dizement of the caste, regardless, utterly, of all other inter- 
ests, either sectional or national, whenever they come in 
competition, as they can not fail to do, with the "peculiar 
institution" — its stability, and its claims. All trr's, we re- 
peat it, is done by one sixty-eighth part of our whole popu- 
lation — by a body of men whose aggregate numbers amount 
to little more than one-half th<< number of legal voters in the 
single State of New- York ! All this too, by virtue of State 
legislation, which if repealed or annulled, would instantly 
annihilate the caste itself, and revolutionize all our political 
affairs! 

If this be not an " order of nobility," in what particulars 
does the definition of the thing consist ? Comparing the 
facts of the case with the definitions of our lexicographers. •, 
what else can we make of those facts than the veritable 
original existences, of which the words of the Constitution 
are the expression? By all intelligible apprehension or con* 
struction of language, does it not appear that the provision 
of the Constitution which inhibits the States from granting 
any " titles of nobility," is identical in meaning with that 
other provision which enjoins on the States " a republican 
form of government," and that both are equivalent to a pro- 
hibition of slavery ? 

It avails nothing to say that, in many particulars the " pe- 
culiar" institution differs from the aristocracies of the old 
Avorld. The aristocracies of Europe differ as much from 
those of Asia, as those of the American States do from both. 
The aristocracy of France differs from that of Venice, and 
both of them from that cf Russia. The present aristocracy 



CHAP. II. STRICT CONSTRUCTION. 73 

of Great Britain differs from that of its own ancient feudal- 
ism. But all are, alike, aristocracies, nevertheless. An 
order of "nobility" precisely upon the model either of the 
ancient feudal or modern European States, could not have 
heen established in the American States, and a constitutional 
prohibition to that specific point would have been without 
meaning ; as much so as it would have been to have prohib- 
ited the establishment of the Hindoo castes, or the patri- 
archal arrangements of Melchizedek's time. Instead of this 
the Constitution selects a generic term, that includes all the 
different species. The comparison of our American "nobil- 
ity" with those of other nations and ages, would be a curi- 
ous and an intricate one. In some particulars, the one &ight 
have a fair claim for the preference, and in other respects, 
the other. As a whole, it would be difficult to select a more 
odious, a more mischievous, a more anti-republican one than 
the American — none, certainly, so wicked, so cruel, so inhu- 
man, so degrading, so demoralizing. In the comparison 
with it, the system of feudalism, which in some respects, it 
strikingly resembles, and to which it is often compared by 
its friends, was magnanimous and manly. That was found 
ed on the spirit of military adventure — this, upon cupidity 
and meanness. The "chivalry" to which our American 
nobility of woman-whippers lay claim (thereby asserting 
their prerogatives as feudal chieftains or barons) is aquali.y 
which the semi-barbarous "nobility" of ancient Europe re- 
ally possessed. They did not drive a n?farious traffic in the 
sinews and souls of their own children. They did not sell 
infants at. auction by the pound. The serf was attached to 
the soil, but he was not an article of commerce, a chattel 
personal. The peasantry were not degraded by the inca- 
pacity to contract marriage, to live in the family relation, to 
possess some articles of property, and even to hold lands 
under a certain tenure and for services rendered. And they 
freely uttered their thoughts. If degraded, the serf was a 
degraded man, and not a mere thing. He was not mana- 
cled and driven to his daily task by a driver. So far from 
being prohibited to bear arms, one of his avocations was 
that of a soldier ; he was relied upon for his country's de- 
fence instead of being guarded by a patrol — the main tie 
that bound him to his master, was his relation as a soldier, 
to his chieftain, (whose family name he sometimes bore,) and 
to his " clan," in whose fame and triumphs he had a share. 
The feudal system, therefore, as a political arrangement, did 
little to degrade the masses under the heel of a caste, in the 
comparison with the slave system. If it degraded industry, 



74 AMERICAN CONSTITUTIONAL LAW. 

it was not so much because it made labor the badge of ser- 
vility, as because it inspired those who should be laborers 
with the ambition of military renown. Such a system would 
less violently and rudely clash with the aims and arrange- 
ments of a free republic than the slave system. In other 
words, it would be less aristocratic, would establish an order 
of" nobility" of a mitigated character, less obnoxious to the 
charge of subverting the liberties of the people. 

" Serf. A servant or slave employed in husbandry, in some countries 
. attached to the soil and transferred with it." — Webster's Dictionary. 

{( Villein, or villain. In feudal law is one who holds lands by a base 
or servile tenure, or in villenage. ,} — lb. 

(i Villanage, or villenage. 1. The state of a villain; base servitude. 
2. A base tenure of lands ; tenure on condition of doing the meanest ser- 
vices for the lord." — lb. 

"Feudalism. The feudal system; the principal and constitution of 
feuds, or lands held by military services." — lb. 

The feudal "chief" or " chieftain" was the commander 
or head of a troop of serfs — or over a " clan" composed of 
such. " Chieftainship, or chieftainry" was " the government 
over a clan." — Vide Webster. The feudal chiefs were 
sometimes called "barons," and the word baron, according 
to Webster, is "a title of nobility." The States are in- 
hibited, by the Constitution, from granting "titles of nobil- 
ity." A "serf" is a sort of " slave," and his master is a 
"loi-d." 

Can any one doubt that the adoption of the feudal system, 
by one of the States, would be a breach of this provision of 
the Constitution ? And if so, by what construction of the 
language employed, can we make it appear that the still 
more despotic and aristocratic system of American servitude 
is not also a breach of that same provision ? If the lesser 
would be, why not the gr eater ? 

A comparison of our American "nobility" with that of 
civilized modern Europe; and of American slaves, with Eu- 
ropean peasantry, would exhibit contrasts still more striking. 
The distinction now existing between nobles and common- 
alty in England, in the comparison with the ancient distinc- 
tion between baron| and serfs, has almost melted away ! 
How manifestly then do our American slaveholders consti- 
tute a more despotic specimen of " nobility" than the nobil- 
ity of Europe ! 

The only remaining question is, whether this provision of 
our Constitution retains any meaning, and if so, what that 
meaning can be ? If it can not protect us from the most 
unmitigated of all aristocracies, from the most absolute and 
irresponsible of all orders of " nobility," from what aristoc- 



CHAP. II. — STRICT CONSTRUCTION. 75 

racies, or from what order of nobility can it protect us ? 
And how can it do this ? 

' "War." "No State," (says the Constitution,) shall 
" keep troops in time of peace, or engage in war, unless ac- 
tually invaded," &c, &c. 

" Civil War. A war between people of the same State or city." — 
Webster. 

Have the States a right to make war upon " one-half" of 
their own " citizens V Are the slave States, as a matter of 
fact, in a state of war 1 ? If they are, what has become of the 
constitutional provision that forbids it ? If they are not, by 
what authority, under the Federal Constitution, do they 
keep up their " armed troops," their military " patrols" 
"in time of peace?" What right have they to authorize the 
scouring of the country by armed troops with rifles, pistols, 
and other military weapons, (to say nothing of blood-hounds,) 
to hunt down and shoot, without judge or jury, a portion of 
the people, for no fault, but a desire to " secure for them- 
selves and their posterity, the blessings of liberty?" What 
right have they to pass " acts of outlawry" against the la- 
boring people, for no crime but refusing to labor without 
wages, or for the misdemeanor of visiting their husbands 
and wives, their children or parents, or seeking a residence 
with them ? Have the States a right, under the Federal 
Constitution, to wield military force for objects like these? 
If they have, what is the meaning of the constitutional inhi- 
bition just quoted? And by what rules of interpretation 
shall that provision be so construed as to prohibit any other 
species of war, or any other State arrangements for main- 
taining armed forces in time of peace? In another connec- 
tion we have shown that the "suppression of insurrection," 
and the " execution of the laws," do not call for any milita- 
ry demonstrations, nor authorize them, in such cases as those 
now under review. 

Another constitutional provision requires a moment's at- 
tention in this place. 

"The citizens of each State shall be entitled to all the privileges and 
immunities of CITIZENS, in the several States.''— Article IV ., Section 2, 
Clause 1. 

But many of the "citizens" in some of the States, are 
free people of color. They are recognized as citizens by 
the Constitutions and Laws of the States wherein they re- 
side. Large numbers of them are legal voters and vote at 
Presidential as well as State elections. They are eligible, 
and are sometimes elected to office. A colored man has 
been a member of the legislature of Massachusetts. 



76 AMEEICAN CONSTITUTIONAL LAW. 

Now the laws of all, or nearly all the slave States, or the 
regulations and ordinances of cities within those States and 
under State authority, are in direct violation of the above 
provision of the Constitution, so far as free citizens of color 
are concerned. They can not visit the slave States without 
being subjected to violations of their rights as citizens, by 
the public authorities of those States. If they visit the 
Southern seaports in coasting vessels, as seamen, they are 
seized and put in prison for safe keeping, till the vessel is 
ready to depart. This is a fact of common and general oc- 
currence, and if the colored citizens were ship-masters, su- 
percargoes, or ship-owners, the law would equally apply to 
them. Any such citizen of a free State, visiting a slave 
State, is liable to be seized on suspicion of being a fugitive 
from slavery, thrust into jail, and unless able, (under such 
disadvantages,) to make satisfactory proof of his freedom, 
sold into perpetual slavery, attainting his 'posterity forever, 
under the great Southern "bill of attainder," FOR THE 
PAYMENT OF HIS JAIL FEES! [Strange to tell, the 
laws and the usages of the Federal District itself, under 
" exclusive legislation of Congress," and under its eye, con- 
forms to this general law of slavery in the States, on the plea 
that comity to the States requires it, and that in no other 
way can " the peculiar institution" be preserved !] Thus 
complete are the triumphs of the slave power over the plain- 
est and most pointed prohibitions of the Federal Constitu- 
tion. 

The time would fail to point out all the ways in which 
the rights of white citizens of the free States secured under 
this clause, are violated by the action of the slave States. 
At this moment, there are thousands and tens of thousands 
of citizens of the free States including many of their most 
estimable inhabitants, and not a few gentlemen of literary 
distinction and high station, ministeis of the gospel and 
statesmen, who can not, with safety to their persons, visit 
large portions of the slave States. In some of those States 
they would encounter enactments for the capital punishment 
of those who should have spoken or written against slavery. 
In none of them, perhaps, would they be secure of protection 
from the summary vengeance of "Lynch law" — and in 
some cases, they would be dependent for that protection, on 
the State authorities that had demanded of Northern Gov- 
ernors the delivery into their own power of white Northern 
citizens, to be tried under slave laws, for the crime of writ- 
ing, even in a free State, against slavery — authorities too, 
that had demanded Northern legislation against freedom of 



CHAP. II. STRICT CONSTRUCTION. 77 

speech and of the press — authorities that had offered large 
rewards for the felonious abduction, in the free States where 
they resided, of free white citizens, for the same crime of 
writing against slavery ! 

Is any more evidence needed, that this constitutional pro- 
vision is, with impunity, violated, and made of none effect, 
by the action of the slave States?* 

And all this, be it remembered, is in harmonious keeping 
with the common and prevailing expositions of the Constitu- 
tion which make it a " guaranty " of slavery or a " compro- 
mise" with it, nn&'therefore a crime or a misdemeanor for any 
subject of the Constitution to oppose slavery, the sacred 
object of constitutional protection ! 

The u Summing up." 
, 1. In this chapter we have examined, upon the principles 
of "strict construction," those provisions of the Constitution 
that have been held to involve a " guaranty" of slavery, or 
its tolerance by "compromise," and we claim that, on those 
principles, no such guaranty or compromise can be proved. 

2. On the same principles, we have considered other por- 
tions of the Constitution, which we claim to have proved in- 
consistent with the existence of slavery in the States, and 
to require and authorize its abolition, by the Federal author- 
ities, judicial and legislative. 

Let the supposition now be made, for the argument's 
sake, that we have failed to prove what we claim to have 
proved, under this second head. It might still be true that 
no "guaranty" or " compromise" in favor of slavery, on the 
principles of strict construction, could be proved. This 
would leave the " peculiar" institution without the benefit 
of a national guaranty or even a compromise, in its favor. 
And from that circumstance we could deduce an argument 
not very different in its practical results from the one now 
reached. Remove from slavery the support it derives from 
the Federal Government, and it speedily falls. And besides, 
in the absence of any guaranty or compromise in its favor, 
what consideration of justice or policy could forbid the Fed- 
eral Government to abolish it ? 

* Since our first edition was published, a still further illustration has been 
furnished, showing that the circumstance of color furnishes no harrier norex- 
ception to the usurpations of the slave power. The State of Massachusetts, 
through her Legislature and Executive, commissions one of her most distin 
guished and venerable citizens, Hon. Samuel Hoar, to visit South Carolina, for 
the purpose of acting as attorney on behalf of colored citizens of Massachusetts, 
illegally imprisoned in that State, with a view of testing, in the Federal Courts, 
the constitutionality of the State laws of South Carolina, authorizing such im- 
prisonments;— whereupon the Governor and Legislature of South Carolina 
promptly and unceremoniously expel the authorized agent of Massachusetts 
jrom their State ! 



7S AMERICAN CONSTITUTIONAL LAW. 

We will now vary the supposition a little. Let it be as- 
sumed for a moment, that the Constitution, by the principle 
of "strict construction" has been found to conflict with itself 
— that while on the one hand, it contains some provisions in 
favor of slavery, on the other hand, it contains some provi- 
sions against it. Not a few have believed this to be the fact, 
and they have been puzzled and perplexed with the sup- 
posed phenomenon, and have solicitously asked how such a 
Constitution could be administered. Others have supposed 
that each feature and provision of it, whether for, or against 
slavery, was to be carried into effect, in its place, however 
conflicting in their results ! On this point we have a thought 
or two to suggest. 

" Strict construction" has. nothing to do with the task of 
reconciling inconsistencies and contradictions in a written 
document. It can only expound its several parts by the help, 
of its grammar, its lexicon, and the current use of the terms 
and phrases, according to the accredited literature within 
its reach. When it has done this, its functions are fulfilled. 
It is neither a legislative, nor yet an executive power. It is 
simply judicial, and its judgment is guided exclusively by 
one rule, namely, the dead letter of the words. It can not, 
like other tribunals, inquire after the spirit — the main scope, 
the grand design of the instrument, and make its minuter- 
details bend into consistency with that, or give way to it. 
If the Constitution by the strict letter, has provided for the 
establishment of justice and the robbing of hen-roosts — if it 
has enjoined the preservation of liberty for ourselves and 
posterity, and the seizure and enslavement of every sixth 
man, woman, and child among us, if it has made it the duty 
of Congress to provide for the general defence, and to con- 
vert one-half our citizens into enemies, if it has guarantied 
a republican form of government and has guarantied the 
perpetuity of a ruling oligarchy, if it requires us to guard 
the President's house from all danger, and to put five tons 
of Dupont's best gunpowder under it, and light the dry 
match that leads to it, " strict construction" with due gravity 
and composure records it all, and reads off* its record with- 
out a stammer or a changed muscle. That is its verdict. 

But what shall the executive power do with it? Do? 
Why do nothing at all, of course, until impossibilities cease 
to be such. Let it rob the hen-roosts, according to law, and 
by judgment of Court, but take care to do it only when, and 
as it can be done, according to law, that is, in accordance 
with "justice!" Let it seize and chattelize its prescribed 
proportion of our citizens, only taking care to do it in such 



CHAP. II. STRICT CONSTRUCTION. 79 

a manner as to " secure the liberty" of all our citizens, and 
" their posterity" — let it convert one half its citizens in one 
half of the States into enemies, but in such a way as to 
" promote the general welfare, and provide for the common 
defence" — let it " guaranty" or tolerate by " compromise" a 
ruling oligarchy of 250,000 men to control seventeen mil- 
lions, whenever it can be done in consistency with a "repub- 
lican form of government," and without any " bills of attain- 
der" or laws "impairing the obligation of contracts" by the 
authorities of the States. And let it blow up the President's 
house with gunpowder, whenever it can be done with per- 
fect safety to that edifice ! This is all that " strict con- 
struction" can award, or authorize to be done, so far as the 
" peculiar" claim is concerned, and for the plain reason that 
one provision of the Constitution is as precious in its eyes as 
another, and each must stand valid upon the independent 
power of its own immaculate ivords and syllables ! 

For illustration's sake, let the slave power stand before 
the Court, in the person of Shakspeare's relentless Jew, 
Shylock, demanding his pound of flesh, from the Christian 
merchant of Venice, to be cut out of his very vitals, "accord- 
ing to the bond /" The plea was a " strict construction" 
plea, and the Court was a "strict construction" Court. The 
sentence accordingly had to be rendered in favor of the 
plaintiff! The pound of flesh was his " due" and he might 
cut it out where he pleased ! "A Daniel come to judgment!" 
triumphantly exclaims the revengeful Jew, as he whets his 
murderous knife for the slaughter " according to law!" But 
hold ! rejoins the Judge. " One pound" is the judgment of 
the Court "according to the bond." At your peril, cut not 
a fraction less or more ! And again. Another statute, says 
the Judge, provides that if a Jew do shed one drop of Chris- 
tian blood, his life shall pay the forfeit ! At this the Jew 
lets drop his knife, and offers to withdraw his claim and 
leave the Court. But hold ! again, exclaims the " strict 
construction" Judge. Another law provides that if a Jew 
conspires against the life of a Christian, that Jew shall die, 
and his estate be confiscated unto the State of Venice ! 
Thou, Shylock, hast conspired, in open. Court, against this 
Christian's life, and now the sentence of this law must rest 
upon thee! ".4 Daniel come to judgment" — a thousand 
voices respond. " A Daniel come to judgment] I thank 
thee, Jew, for teaching me that word!" 

If "strict construction" could award to slavery what it 
claims under the Constitution of 1787-9, the return of fugi- 
tive slaves, the apportionment of representation upon the 



80 AMERICAN CONSTITUTIONAL LAW. 

basis of slavery, the twenty years' tolerance of the African 
slave-trade, the quelling of refractory slaves by the national 
arm, the "reserved rights of the States" to fatten upon their 
pound of human flesh " according to the bond" — of what 
earthly avail could be the verdict in favor of those claims, 
so long as it must accompany another verdict, affirming the 
right and the duty of the Federal Government to "establish 
justice," " secure the blessings of liberty" and " provide for 
the common defence?" 

We may understand, by this time, the result, (not to say 
here, the absurdity,) of supposing the Constitution to contain 
provisions in favorof slavery, and provisions to " secure the 
blessings of liberty." If it be so, and if "strict construc- 
tion" must thus determine, why then, it must determine in 
effect — for it must follow — that the constitutional provisions 
in favor of slavery can be of no benefit to the claimants. 
The verdict they may have, and welcome. -But the uses for 
which the verdict was sought, can not be reached, so long 
as the other — the conflicting provisions of the Constitution 
remain. 

In no way then, can any available verdict in favor of the 
' slave claim, be obtained, but by making it appear that all 
the provisions of the Constitution are in harmony with the 
slave system ; that while some of them are distinctly in its 
favor, none of them are decidedly against it. But this 
can not, with any show of decency, be pretended. And of 
course, the "peculiar" claim falls to the ground, even if it 
were so, that the argument of this chapter had not been 
fully sustained-; — which we do not admit. 

Returning from this digressive supposition, (which we 
have made for the benefit of those who are inclined to split 
in two, with their convenient beelle-and-wedges arbitra- 
ment, every disputed question,) we insist that in the Court 
of " strict construction" the Constitution of 17S7-9 has 
been found to contain wo guaranties or compromises in favor 
of slavery, but a number of explicit provisions against it, 
fully authorizing the exercise of the Federal Power for its 
overthrow. We are now ready to meet the "peculiar" 
claim at that other tribunal to which it has our leave to ap- 
peal. In our next chapter we shall see whether " the spirit 
of the Constitution" is more favorable to slavery than its 
letter. 



CHAP. 111. SPIRIT OF THE CONSTITUTION. 81 

CHAPTER III. 

"SPIRIT OF THE CONSTITUTION." 

The Constitution of 1787-9. Considered in the light of 
its spirit, its objects, its purposes, its principles, its aims. 

1. Preliminaries — "Spirit of the Constitution" defined — Its province 
and authority as a rule of construction — An obvious but neglected dis- 
tinction. 2. Spirit of the Constitution as manifested by the instrument 
itself— by its Preamble— by its grant of powers— by its construction of 
the Federal Government — by its care of personal rights — by its provi- 
sions hostile to slavery— Spirit of the Preamble— Spirit of the powers 
conferred — Structure of the Federal Government — Security of personal 
rights — Provisions hostile to slavery — Affinity with Common Law — Spe- 
cimens of Common Law — Its power. 3. Spirit of the Constitution, as 
attested by History, by civilians, and jurists — Extent of the National 
Power. 4. The Constitution construed— The "spirit of the Con^itu- 
tion" on the wool-sack. 5. Special pleadings, their fallacy. 

SECTION I. 

PRELIMINARIES. 

There are but two different methods or rules of construc- 
tion, by which the meaning of a written document, like our 
Constitution, may be interpreted and explained. The one 
refers, us to the letter — the other to the spirit. Having at- 
tended to ih.e former, we come now to the latter. We open 
our eyes upon a wider field, and a more attractive one. A 
few particulars must be premised, and " the rules of the 
Court" understood. We are to try the cause by another set 
of maxims, now. 

1. The language of the Constitution is not to be excluded 
from the present inquiry, thougfo-it is not exclusively to be 
depended upon, as it was at the lower Court. At the pre- 
sent Court, the words used in the document, are admitted 
as witnesses, but other witnesses are admitted along with 
them. 

2. The prevailing spirit, the general scope, the leading 
design, the paramount object, the obvious purpose of the 
instrument, constitute the first, the chief ^omi of attention. 
If any minor objects, collateral interests, incidental details, 
local designs, temporary arrangements, or doubtful and dis- 
puted provisions present themselves, all these are to be 
grouped together, as constituting secondary topics of inquiry! 

3. The latter or secondary class, are in t,he next place, to 
be disposed of, in the light of the former, or primary ; are 

6 



82 AMERICAN CONSTITUTIONAL LAW. 

to be construed in such a manner as not to conflict with, or 
thwart them, or else they must be set aside, as inexplicable, 
impracticable, contradictory, or suicidal. Otherwise, very 
manifestly, (in case of discrepancies, and contradictions, to 
which all the written instruments of fallible men are sub- 
ject) there will be to be witnessed, the sacrifice of the pre- 
vailing spirit and paramount objects of the instrument to 
petty interests and absurd details, or else we shall be obliged 
to see the Constitution stultified by its palpable self contra- 
dictions and impracticabilities, precisely as (under a similar 
supposition) upon the principles of "strict construction" we 
have already seen done. 

In other words, we should be driven back again, to that 
same Court of "strict construction" whose verdict and judg- 
ment we have already obtained, or to no construction, at all. 
For the very notion of " construction" supposes that some- 
thing needs to be explained and determined, that had seemed 
anomalous, obscure, or doubtful. Construction, moreover 
must proceed by some rule. And to say that the " spirit of 
the Constitution" — in distinction from its dead letter, must 
furnish that rule of construction, is the same thing as to say 
that the spirit of the Constitution must control and govern 
that construction, so that every thing apparently conflicting 
with the spirit of the Constitution must either be so under- 
stood as to agree with it, or else be set aside to give place 
for it. To demur against this would be to appeal from the 
" spirit of the Constitution" to something else. And if 
neither the letter nor the spirit of the Constitution can guide 
us, it becomes a nullity. 

4. In determining either the general spirit of any written 
instrument, or the meaning and intent of its particular de- 
tails and specific provisions, a distinction is to be preserved 
between the spirit, design, or intentions' of the principal 
party or parties interested in the document, who sign and 
seal it for ratification, as being their own act, and the spirit, 
design and intent of the persons employed to draft and pre- 
pare such an instrument, including, (it may be) the spirit, 
design and intent of a minority of the persons concerned, 
acting with the draftsmen, in distinction from the main body 
concerned. The design of the former instead of the latter 
is the main thing to be ascertained. The testimony of the 
latter to the designs of the former, is to pass for what it is 
worth, in connection with other testimony, and no more. 

Thus, in a will, the main thing is the design of the testa- 
tor : — this is not to be confounded with the design of the 
penman of the will, closeted with a few of the heirs. The 



CHAP. III. SPIRIT OF THE CONSTITUTION. 83 

design of the parties to a written agreement, (or the main 
body of them, where large numbers are concerned,) is to be 
held quite distinct from the designs of the men employed to 
draw up the paper, in connection with a few others who 
may be near them. And " We, the people of the United 
States" who adopted the Constitution, and whose act and 
instrument it is, are not bound to concede that our design, 
in adopting and maintaining it, was, of necessity, identical 
with what may be proved to have been the design of the 
persons, or a portion of the persons, we employed to prepare 
it for us. What the Convention of 1787, or a portion of it, 
intended to effect by the Constitution, is not to be confounded 
with the designs, especially the paramount object of THE 
PEOPLE who adopted it. The objects of the Convention, 
or members of it, may deserve our attention, and their testi- 
mony to the spirit of their times, may command respect. 
But their intentions are not to be substituted for the inten- 
tions of THE PEOPLE, or confounded with them. Nor are 
the intentions of a mere fraction, an oligarchy of the peo- 
ple, to pass for those of the people themselves. 

With these needful memoranda, to prevent our confound- 
ing things that are radically distinct from each other, or put- 
ting them in places where they do not belong, we proceed 
to our inquiries. 

But how shall the " spirit of the Constitution" be ascer- 
tained ? — First, by an inspection of the document itself: — 
second, by such external evidences as may present them- 
selves. 

SECTION II. 

The " Spirit" manifested by the Instrument itself. 

"Even a child is known by his doings." The spirit and 
temper of every man is apparent in his deportment and 
methods. The implements invented by men reveal the 
spirit in which they were conceived and framed, by the 
general purposes, whether of utility or of mischief, that they 
were evidently adapted to subserve. No one need mistake 
a plough for a military weapon, nor a " field piece" for an 
utensil of husbandry. The spirit and design of every piece 
of machinery is indicated by its form and structure. It may 
be perverted to unsuitable purposes, though made with a 
wise and benevolent design, and it may bear marks of hav- 
ing been wrenched and injured by the absurd process. By 
these common sense rules, let the " spirit of the Constitu- 
tion" be tested. 



84 american constitutional law. 

" Spirit" of the Preamble. 

The strict Utter of the Preamble has been examined, and 
found hostile to slavery. And wherein can its "spirit" be 
distinguished from its letter ? If in any thing it is in this : 
that the " spirit" of the paragraph, is, if possible, still more 
emphatically and unmistakably belligerent in its aspect, 
against slavery and imperative in its demands for its over- 
throw. If the claimant of constitutional slavery, "in the 
Court of "strict construction," should have adventured to 
perk himself upon technicalities, and demand that " slavery" 
and its "abolition" should have been distinctly specified by 
name in the Preamble, in order to have made out a warrant 
for the congressional abrogation of the slave laws of the 
States, there can be no room for any suggestion of the 
kind, here. We are not at the Court of " strict construction" 
now, nor trammelled by its narrow rules. We rise from 
the letter to the spirit — from the mere words, to their fullest 
comprehension and extent. We recognize here, in addition 
to the mere language, the spirit that evidently breathes 
through that language, and moves and refreshes our inmost 
souls. We claim that the "spirit of the Constitution" 
speaking through this Preamble declares, for itself, its high 
aims and intents ; that it speaks out in the authoritative 
voice of law; — that it utters no rhetorical flourish : no cant- 
ing profession. We claim that each and every specification 
in the Preamble, is a definite provision of the " spirit of 
the Constitution," as truly so as the clauses that tell how 
the judges of the Federal Court shall be appointed, and the 
votes cast for President and Vice-President. We claim 
that " the spirit of the Constitution" enjoins on the govern- 
ment it creates and defines, such legislative, judicial, and 
executive action, as shall truly and effectually " forma more 
perfect union, establish justice, ensure domestic tranquil- 
ity, provide for the common defence, promote the general 
welfare, and secure the blessingsof liberty to ourselves and 
our posterity." And no one doubts that this would include 
the abolition of slavery. Whoever may carp and cavil about 
technicalities and words, no one with "the spirit" of a man 
in him will deny that " the spirit" of this Preamble requires 
of the Government created by it, the overthrow of slavery 
among "the People of the United States." 

" Spirit" of the Powers conferred. 

And this is still further proved by the ample powers be- 
stowed upon Congress, to carry the declared objects and 
provisions of the Constitution into effect — to " make all laws 



CHAP. III. SPIRIT OF THE CONSTITUTION. 85 

necessary and proper" for that purpose. — [Art. L Sec. 8, 
Clause 17.] Had ti.e " spirit" of the Constitution even ap- 
parently failed to clothe the Government of its creation, the 
instrument of its high purposes, with the requisite powers to 
do the things declared to be the main object of the Consti- 
tution, there might have been some apparent ground for a 
doubt. But certainly there can be no rational or magnani- 
mous doubt, now. When a parent charges a child with the 
transaction of a certain piece of business, declaring with 
precision and emphasis, the main objects he wishes to have 
him "secure?' and then actually puts into his hands all the 
needed implements for the task, including his own well ex- 
ecuted power of attorney authorizing him to act in that pre- 
cise direction, what candid man could doubt that the " spirit" 
of that parent and of his instructions was sufficiently reveal- 
ed by these acts? The Constitution, as the parent of the 
Federal Government, has directly and explicitly cfeclared 
the main work and business of that Government, in the spe- 
cifications of the Preamble. The;; in the clause above cited, 
the parent puts into the hands of the child his " power of 
attorney" fully vesting him with power to do the work de- 
scribed. How preposterous, after all* this, to doubt, either 
the legal authority of the child to do the very errand he was 
sent upon, or the "spirit" of the parent's instructions! 

If the positive and unequivocal declaration, by the Con- 
stitution, of its MAIN OBJECT in establishing the Federal 
Government, can not be understood to be binding, what part 
of the Constitution can be held to be binding? And if that 
declaration of its main object, thus connected with the ex- 
plicit grant of the powers necessary for its accomplishment, 
can not reveal the "spirit of the Constitution," in what pos- 
sible way could it be revealed? 

To say that it should have been revealed by the technical 
terms "slavery" and "abolition" would be the same as to 
say that the Constitution should have been a statute book. 
It would be saying, in effect, that the "spirit of the Consti- 
tution" can reveal to us nothing, and that w r e must go back 
to the dead letter and to " strict construction" for all our light 
on the subject ! More than all this, it would be to deny that 
e^en strict construction could guide us — for the words " slave- 
ry" and its "abolition" are neither more plain nor emphatic, 
than the words injustice and justice, and a "strict construc- 
tion" of the former could not be more explicit than a strict 
construction of the latter. 

Men may say, if they please, that the letter of the New- 
Testament does not abolish slavery, though such a statement 



86 AMERICAN CONSTITUTIONAL LAW. 

would not evince a very minute or extensive acquaintance 
with the power of human language, the meaning of words. 
But very few are so hardened or obtuse as to deny that the 
" spirit" of the New Testament abolishes slavery. It is 
scarcely less evident that the " spirit" of the Federal Con- 
stitution abolishes slavery, or at least, authorizes and re- 
quires the Federal Government to do so. 

"Spirit of the Constitution," As revealed in the struc- 
ture of the Federal Government. 

The " spirit" of every Constitution of civil government 
is indicated by the very frame-work of the government it 
creates or authorizes. The " spirit" of the French Consti- 
tution is seen in the French Government. The " spirit" of 
the British Constitution is seen in the distinctive features of 
the British Government. If the "spirit" or any Constitu- 
tion of government be monarchical, the government will be 
essentially monarchical. If the " spirit" of the Constitution 
be aristocratic, the structure of the government, will be aris- 
tocratic. If the " spirit" of the Constitution be democratic, 
the form of the government will be democratic. And if the 
"spirit" of the Constitution partake of a mixture of these 
three elements, the form of government will exhibit a like 
mixture. If the " spirit" of any Constitution b-3 " pro-sla- 
very," that spirit too, will be revealed in the structure of 
the government. Let the " spirit" of the Constitution be 
tested by this rule. 

In what particular does the structure of the Federal Gov- 
ernment betray the pro-slavery "spirit" of the Constitution 
that gave birth to it? Wherein does it establish, or even 
recognize that "peculiar" caste that now claims its sanction 
and fts guaranty ? In what part of the instrument do you 
find any mention, either of slavery, or of slaves — of " white" 
citizens, or "people of color?" In a former chapter we have 
shown that not even the condition exclusively, or distinc- 
tively of the slave, is described in the clause commonly 
cited for that purpose. 

No distinction of color, or of race, or parentage, is speci- 
fied in the Constitution, among the qualifications, either of 
voters under the Constitution for the highest officers of the 
Government, nor among the qualifications of the officers 
themselves. There is nothing in the Constitution that pre- 
vents negroes from voting for President, Vice-President, and 
members of Congress, on the same level with white citizens, 
and in many of the States, they do vote for those officers. 
There is nothing in the Constitution that disqualifies a negro 



©HAP. III. SPIRIT OF THE CONSTITUTION. 87 

from holding any office under the Federal Government, from 
the highest to the lowest, civil, military, legislative, judi- 
ciary, or executive. A negro may be constitutionally ap- 
pointed Chief Justice of the United States^ or Minister Plen- 
ipotentiary to any foreign Court. If the people of any con- 
gressional district in this Union should choose a negro to 
represent them in the House of Representatives of the Uni- 
ted States, he would be constitutionally entitled to a seat 
there. If the legislature of any State in this Union should 
select a negro to represent the State in the Senate of the 
United States, the Federal Constitution secures him a seat 
there, on an equal footing with a Webster, a Clay, or a Cal- 
houn. And if the People of the United States or a major- 
ity of them, {the majority of the people of the thirteen non- 
slaveholding States, for example) should choose a full blood- 
ed American born negro, t6 be President of the United 
States, he would be the constitutional President, holding 
the same station and wielding the same powers held and 
wielded by a Washington, a Jefferson, or a Madison. 

This feature of the Constitution 'is the. more remarkable 
on account of its agreement with the Articles of Confedera- 
tion that preceded it, and especially when it is remembered 
that in the Congress of 1778, in which those Articles were 
framed, a motion was unsuccessfully made to amend the 
phrase "free inhabitants" by inserting between them tlie 
word "white" — thus deliberately settling the question that 
'vhe CASTE of COLOR should have NO PLACE nor re- 
cognition in the National " Compact." And we have no 
■account of any attempt in the Federal Convention of 1787, 
Aq engraft upon the new Constitution, the contrary principle. 

Thus absolutely certain is it that the "Spirit of the 
Constitution" is the spirit of human equality, directly and 
specifically hostile to the spirit of caste, especially to a caste 
founded on the circumstance of color ;, of blood, of race, or of 
descent. Contrast this " spirit of the Constitution" with that 
other spirit that cries out "amalgamation" at every attempt 
13 make the State Constitutions, even in the non-slavehold- 
ing States, correspond with the Constitution of the United 
States in this respect. Then say whether the " spirit of the 
Constitution" be not identical, in this vital particular, with 
J.hat spirit of thorough "abolition" that is denominated the 
'spirit of fanaticism" and the "spirit of amalgamation" 
now! 

Who does not intuitively know that if a " guaranty" of 
lavery, or a " compromise" with it were to have been in- 
troduced into the Constitution of the United States, one of 



88 



AMERICAN CONSTITUTIONAL LAW. 



the most essential points, one of the most ready expedients 
(and the one least calculated to meet with effective opposi- 
tion) would have been the introduction of the word " white" 
among the qualifications of voters and officers? If even this 
could not he attempted, with a hope of success, what could? 
Who does not know that one of the highest and most diffi- 
cult points of attainment, even in an " ultra modern aboli- 
tionist," a point proverbially difficult to be reached, is the 
point of harmonious affinity with the "spirit of the Consti- 
tution," as thus revealed? 

The "spirit of the Constitution" utterly abjures the caste 
itself upon which the whole slave system is based, takes the 
despised negro by the hand, and seats him indiscriminately 
around the ballot box among his paler brethren, and holds 
out before him, to incite his^ manly emulation, the highest 
summits of official station in her power to bestow, the high- 
est seats in the National Government itself. And are we to 
be told that this same "spirit of the Constitution" has 
"guarantied" the perpetual degradation and chattelhood of 
the colored man— that it authorizes the hunting of him, 
through all the States in the Union, "without due process of 
law" * or jury trial, as though he were a wild beast, or a 
noxious reptile? Did ever effrontery itself, before, adven- 
ture to urge such a claim as this ? 

With the feature of the Constitution just, noticed, the 
whole structure and organic framework of the Federal Go- 
vernment agrees, and without that feature that structure 
could not be what it confessedly is, and what it is the pride of 
every intelligent and high minded American to represent it, 
— a free Government — founded on the supremacy of the 
people, the exclusion of monopolies, the annihilation of 
privileged orders, and the absence of caste. 

The same "spirit of the Constitution" that puts the color- 
ed man upon a level with the white, disdaining even an al- 
lusion to any distinction between them, is the spirit that is 
manifested in its speaking in the name of THE PEOPLE, 
(the whole of them, not a favored class) its derivation of the 
govern ment from the people, the election of the officers of 
the government, either directly or indirectly, by the people 
— the accountability of the highest officers to them, inclu- 
ding the liability of the President himself to impeachment 
and trial, the provisions for frequently returning elections, 
jhe general eligibility of the people to office, without dis- 

* This one inhibition of the Constitution, by the bye, is enough to settle the 
unconstitutionality of the Act of Congress of 1793, and of the late decision of 
the Uuited States Court in the case of Prigg vs, Pennsylvania. 



CHAP. III. SPIRIT OF THE CONSTITUTION. S9 

tinction of caste — the reservation to the people (either di- 
rectly or through their State Governments) of all the pow- 
ers not delegated in the Constitution itself. These features 
of the Federal Government, the glory and the boast of every 
American, can not be separated from the feature that con- 
stitutes the same governrrient the unalterable and uncom- 
promising enemy of the cord of caste, and consequently of 
that abominable slave system with which that caste is 
identified, and by which it is created and preserved. 

If the " spirit of the Constitution" has provided for us " a 
republican form of government," then that "spirit of the 
Constitution" has entered into no " compromise" with 
slavery, and, so far from providing for any " guaranty" of 
slavery, has "guarantied to every State in this Union a re- 
publican form of government" by the definition and on the 
model of the Federal Government itself, a definition and a 
model that places the black man on an equality with the 
lohite. 

Before dismissing this topic, it may be proper to notice 
one fact, in the structure of the Federal Government, that 
has been claimed as being friendly to slavery. The appor- 
tionment of direct taxes and representation has been consid- 
ered in the light of an arrangement granting an undue share 
of political power to the slave States, giving them an ad- 
vantage over the rest, and thus holding out as it were, a 
premium to slavery over freedom. But the abolition of 
slavery by the slave States would greatly increase their po- 
litical power, as they might then make citizens of all that 
class of their population, of whom they can now reckon only 
three-fifths, but might then reckon the whole. So that the 
present reduced rate of three-fifths instead of the whole, has 
been regarded, by some, as a rebuke and discouragement of 
slavery, instead of a premium bid in its favor. 

This question, we have no occasion to discuss, now. We 
need not deny that the arrangement is unequal, in its bear- 
ing on the free labor States, that its operation gives the 
slave States more power than they ought to possess, and 
that that power is wielded in support of slavery. But from 
this it does not follow that " the spirit of the Constitution" 
contemplated this result, or could look upon it with favor. 
The results of particular business arrangements and details, 
are often the opposite of those contemplated and intended 
by those who enter into them. No one, at that time, sup- 
posed that slavery could continue to the present period, and 
its perpetuity could not have been the object of that provi- 
sion. Could it even- be proved that such was the design of 



90 AMERICAN CONSTITUTIONAL LAW. 

some in the Convention, who succeeded in shaping the 
clause to their liking, it would not follow that a majority of 
the Convention adopted it with that view. And if they did, 
it would not follow that THE PEOPLE (including those of 
the North,) for whom the paper was drafted, and who 
adopted it, understood and approved it, in that light, or for 
such an object. We are litigating before a Court, wow, that 
can look beyond the mere words, to the "spirit" and intent. 
And it would require strong evidence to prove that the ma- 
jority of the people intended to put themselves under the 
control of the petty oligarchy that now rules them ! Or if 
it were so, the " sober second thought" of their famous 
" amendments'''' for the better security of freedom, cuts off 
whatever of a pro-slavery character might be detected in this 
clause of the original instrument. 

And waiving even all this, we might cut the matter short 
by a dilemma that may serve to silence the claim under this 
clause. This provision either harmonizes with all the other 
features that characterize the structure of the Federal Gov- 
ernment, or it does not. If it does, it can not be claimed as 
a "guaranty" or even a "compromise" in favor of slavery. 
If it does not, why then it becomes an excresence, an anoma- 
ly; and this isolated, obscure, and litigated clause, has to 
be disposed of, (like other incongruities) in the light of those 
outstanding, unambiguous, unmistakable features, by which 
"the spirit of the Constitution" is to be ascertained. This 
is the very process of construction or interpretation, by the 
"spirit of the Constitution;" for this very purpose, we are 
now in Court, and shall proceed to cite other evidences in 
proof that the " spirit of the Constitution" is what we claim 
it to be. 

" Spirit of the Constitution " in its care of 
personal rights. 

The spirit of any Constitution of civil government is not 
more clearly discerned in the structure and form it gives to 
the government itself, than in the bearing of its provisions 
upon the security and sanctity of individual, personal rights. 
Here lies the pith and the " spirit" of civil government, after 
all. A government is good or bad, free or despotic, accord- 
ingly as its provisions are adapted, either to protect and to 
secure the rights of individual human beings, (especially 
those most in need of protection) or, on the other hand, to 
invade and trample upon those rights, or leave them inse- 
cure, or wink at the existence of abuses, usages, laws, and 



CHAP. III. SPIRIT OF THE CONSTITUTION. 91 

Customs, by which those rights are taken away, denied of 
impaired. 

Now slavery, as it exists in the American slave States, is 
the most perfect possible specimen of a system, upheld by 
government, in which all the rights of its victims are tram- 
pled down and denied, and the liberties of all others made 
insecure. 

To learn then, whether the " spirit of the Constitution" 
is a spirit that can enter into a " compromise'' with slavery, 
or " guaranty" its existence, we have only to learn by its 
provisions what value it places upon individual security — 
personal rights. 

And here, we might cite again, the specifications of the 
Preamble, if it would not seem a repetition to do so. But 
there are minuter provisions in the instrument, that we must 
not overlook — provisions utterly at war, both in their letter 
and their spirit, with the usages that constitute slavery and 
that are requisite to sustain it. 

The Constitution of the United States guaranties those 
inestimable and inalienable rights of conscience which sla- 
very wholly denies its victims and can not afford to secure 
— does not permit to be exercised — by any portion of the 
citizens in those States where it bears sway. [Amend- 
ments, Article 1.] 

The Constitution provides for "the freedom of speech and 
of the press " [Amendments,, Article 1.] But freedom, of 
speech and of the press are not only prohibited to slaves, but 
to all who plead their cause, or disseminate the fundamen- 
tal principles of human rights. This is done on the express 
ground, and for the known and admitted reason that slavery 
can not exist where those rights are thus exercised and 
maintained. 

The Constitution expressly recognizes " the right of the 
people" (without distinction of caste or color,) <; peaceably 
to assemble, and to petition the Government for a redress of 
their grievances," [Amendments, Article 1.] But not only 
the slave States, but the Congress of the United States, 
have directly and explicitly denied the right of slaves (the 
mass of the laboring people in half the States) to petition 
Congress, they have virtually and practically denied the 
right of petition to all who petition for the abolition of sla- 
very, and this has led, in one memorable instance, (the 
short session of 1841,) to the suspension of the right of pe- 
tition, in all citizens, and on all subjects, upon the good 
pleasure of the President, as indicated in the topics of his 
Message ! All this has been done on the assumption of the 



92 AMERICAN CONSTITUTIONAL LAW. 

correctness of those prevalent Constitutional expositions that 
make the Federal Government the patron and the servant 
of the slave power. But since the " spirit" and letter of 
the Constitution are grossly and manifestly outraged by 
these proceedings we have abundant evidence that the 
" spirit of the Constitution" and the spirit of slavery are an- 
tagonisms that can never be reconciled.* 

We must remember here, that these constitutional provi- 
sions for the security of personal freedom, are contained in 
the first article of the Amendments, and we must bear in 
mind that amend merits exert a corrective and repealing pow- 
er over all the provisions of the original instrument which. 
may be found to conflict with them. But all the specifica- 
tions that have ever been claimed as being favorable to sla- 
very are contained in the original instrument, and not in 
the Amendments. So that if the Constitution as formed by 
the Convention of 1787, failed to breathe the "spirit" of 
security to personal rights, and of consequent hostility to 
slavery, yet the PEOPLE afterwards took care to infuse 
that ff spirit" into the organic law of their Federal Govern- 
ment, through their Amendments. 

On the same high vantage ground as " Amendments," 

* la further corroboration of the fact that the commonly prevalent construc- 
tions of the Constitution lie at the bottom of all these assaults, in high places, 
hot only upon the right of petition, but upon the right to assemble peaceably 
for that purpose, and to discuss public measures, as well as the freedom of 
speech and of the press, we make a few citations from the speeches, <fcc, of the 
constitutional expositors, so confidently relied upon. 

"Discussion implies deliberation, deliberation is preliminary to action. The 
People of the North have no rie.ht to act upon the subject of southern slavery, and 
therefore THEY HAVE NO RIGHT TO DELIBERATE— NO RIGHT TO DIS- 
CUSS."— Clay's Speech, 1S37. 

Fresh evidence that the prevalent expositions of the Constitution can not, with 
safety be received by a free People! The late President Harrison, in his fa- 
mous speech at Vincennes, May 25, 1835, and approvingly referred to, in his 
letter to James Lyons, June 1, 1840, as containing the sentiments he still held, 
goes into the argument at length. He first assumes that the Constitution pro- 
vides for the return of fugitive slaves, &c. <!fcc. He then adds : 

'*' Now can any one believe that the instrument which contains provisions of 
this kind," &c. &c, "should, at the same time, authorize (the citizens of non- 
slaveholding States) to assemble together, to pass resolutions and adopt addresses, 
not only to encourage the slaves to leave their masters, but to cut their throats 
before they do so. 1 insist that if the citizens of the non-slaveholding States 
can avail themselves of the article of the Constitution which prohibits^the re- 
striction of speech or the press to PUBLISH ANY thing injurious to the rights 
of the slaveholding States, that they can go to the extreme I have mentioned, 
and effect anything further that writing and speaking could effect. But, fel- 
low-citizens, these are not the principles of the Constitution. Am I wrong HI 
applying the term unconstitutional to the measures of the emancipators ?" 

Gov. Marcy, of New York, and Gov. Everett, of Massachusetts, in their mes- 
sages to the Legislatures of those States, took similar ground, suggesting the 
propriety of suppressing anti-slavery meetings and publications by law. Such 
are the conclusions deduced from the premises of a constitutional " compact," 
" compromise" and " guaranty" of slavery. The security of American liberty 
rests in the fact that the premises are unsound. Not even the gigantic powerrt 
of John Quincy Adams have yet sufficed to restore the right of petition, while 
such constitutional expositions prevail. The rights of petition, free speech, 
and free press, would indeed be strange and incredible anomalies, in a govern- 
ment pledged to tolerate and even to sustain slavery ! 



CHAP III. SPIRIT OF THE CONSTITUTION. 93 

overtopping and overlooking, with a supervisory eye, each 
and every one of the provisions claimed as " guaranties" or 
" compromises," by the slave power, we find likewise the 
provisions, forbidding the deprivation of life, liberty, or pro- 
perty, in the ease of any " yen-son" " without due process of 
law," (Amendments, Article 5,) securing "in all criminal 
prosecutions," the "right" of the accused to "a speedy and 
public trial by jury," &c. &c, (Amendments, Article 6,) se- 
curing the same right of jury trial "in suits at Common Law, 
when the value in controversy shall exceed twenty dollars," 
(Amendments, Article 7,) the inhibitions of " excessive bail 
— excessive fines — cruel and unusual punishments," 
(Amendments, Article S,) the recognition of rights in the 
People, not particularly enumerated in the Constitution, 
(Amendments, Article 9,) the reservation to the People, (di- 
rectly or through the States,) of powers not delegated to the 
United States, by the Constitution. Is there any thing 
doubtful or ambiguous in the "spirit" of constitutional pro- 
visions like these ? Or does that " spirit" harmonize wi h 
such constitutional expositions as we find embodied in the 
absurd enactment of 1793, and the still more preposterous 
decision of the Supreme Court, in the case of Prigg versus 
Pennsylvania? Had the "spirit" prevailed, in that Con- 
gress and in that Court, which could not permit the hazard, 
lo a citizen, of the loss of " twenty dollars," in a litigation, in 
a Court of law, without a jury trial, would the civilized 
world have been astounded with th« spectacle of a profess- 
edly free nation, not one citizen of whom is held legally 
free from a seizure of his person by any individual slave- 
holder "without due process of law," and the reduction of 
him to a chattel personal for life, with the " attainder of 
blood" in his posterity forever, and all this ivithoul benefit 
of a jury trial? And without the " leserved right" 
either of " the People" or " of the State,"* to interpose the 
protection of an act providing, in such cases, a trial by jury ? 
What says "the spirit of the Constitution" to questions like 
these? 

There is another authoritative AMENDMENT of the Con- 
stitution sufficient, of itself, to annihilate whatever of the 
poison of a pro-slavery " compromise" or " guaranty" — 

* "The reserved rights of the States" are magnified into prodigies, when 
the right of the slave States to chattelize American citizens, and to send their 
biped blood hounds into every free Stae, to kidnap them, is to be maintained! 
But the "reserved rights of the States" amount to nothing at all, when the 
rights of the free States to protect their own citizens (by "jury trial," by "ha- 
beas corpus," by "due process of law,") against unlawful seizures are to be 
judicially put down ! Thus must it needs be, so long as the present constitu- 
tional expositions obtain. A pro-slavery Constitution could do nothing less ! 



94 AMERICAN CONSTITUTIONAL LAW. 

more or less virulent— might have been ambiguously smoth" 
ered into the original " compact." In the multiplicity o* 
our constitutional weapons against slavery, we had over" 
looked it while before the Court of " strict construction," in 
our second chapter. But we must give it place, now. 

"The right of the PEOPLE to be SECURE in their PERSONS, 
houses, papers and effects, against unreasonable searches and SEIZURES, 
shall not be violated ; and no warrants shall issue, but upon probable 
cause, supported by oath or affirmation, and particularly describing the 
pace to be searched, and the persons or things to be seized." — Amend- 
ments, Article 4. 

"Whether construed by M strict construction" or standing 
in its own light, as a specimen of the " spirit" of the Con- 
stitution itself, no provision could be more significant and 
conclusive than this. Had it been penned with the special 
design to prevent and forever foreclose and annul any such 
legislation as the act of Congress of 1793, or to brand with 
the stamp of unfaithfulness to the Constitution such a judi- 
cial decision as that of the United States Court, in the case 
of Prigg vs. Pennsylvania, what could have been penned, 
more to the point ? " The People" and no particular caste 
of them are to he thus secured from "unreasonable seiz- 
ures." Y"t the Act of Congress, and the judicial decision, 
leaves no class of the people "secure" from the most "unrea- 
sonable" and felonious " seizures" without even the formal- 
ity of any " warrant" at all, in which a description of " the 
place to be searched, and the persons or things to be seized" 
could be introduced. 

To the same purport, as indicative of the " spirit of the 
Constitution" in its care of individual rights, we may cite 
some further provisions of the original instrument itself. 
" The privilege of the writ of habeas corpus shall not be 
suspended, unless when, in cases of rebellion or invasion, 
the public safety may require it." (Art. I., Sec. 9, Clause 
2.) But no "privilege of the writ of habeas corpus" ^r any 
thing else comes to the benefit of any one suspected of the 
crime of having descended from a slave mother or of any 
person, man, woman, or child, white or colored, whom any 
slaveholder may choose and presume (without presentment 
of jury, or writ of magistrate) to claim and to seize as his 
slave ! This, in substance, is the decision of the Supreme 
Court of the United States, under the Act of Congress of 
1793 ; and the decision and the Act are both based upon 
the common construction of the provision in the United 
States Constitution, (Art. 4, Sect. 2, Clause 3,) concern- 
ing " persons held to service and labor." In our Chapter 
II. we have shown that the words of this provision, on the 



CHAT. III. — SPIRIT OF THE CONSTITUTION. 95 

principles of '* strict construction" furnish no warrant for 
such an Act of Congress — for such a decision of Court. 
Appeal has accordingly been made to the "spirit of the 
Constitution" — forsooth ! to reverse the decision ! And 
what has " the spirit of the Constitution" to say, on this 
question? How is it ? When the kidnapper of the South, 
with his bull dogs, (biped or quadruped,) come prowling 
around our Northern villages and hamlets, is it a "case of 
rebellion or invasion" if we refuse to submit to them, or 
even if we trap them or trip up their heels? Does the 
"public safety require" us to be dragged away, without in- 
dictment, or "due process of law" and sent to the Southern 
rice-swamps without a jury, and without " the privilege of 
the writ of habeas corpus?" Does "the spirit of the Consti- 
tution" agree with this ? If it does, let the People under- 
stand, that they may appreciate its benefits! If it does not, 
let the " spirit of the Constitution" be better understood, 
and no longer identified with the spirit of legalized Lynch 
law, and made by decision of the Supreme Court, the stand- 
ing commission of the man-thief, setting all the sacred 
guaranties and safeguards of personal liberty at defiance ! 

" The trial of all crimes except in case of impeachment, shall be by- 
jury, and such trial shall be held in the State where the said crimes shall 
have been committed," &c. — Article III, Sec. 2, Clause 3. 

" Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and com- 
fort. No person shall be convicted of treason unless on testimony of two 
witnesses to the same overt act, or on confession in open Court." — Art. 
III., Sec. 3, Clause 1. 

The "trial by jury" is here recognized, in the original 
instrument itself. And treason is to be defined and punish- 
ed by the most liberal and lenient rules. What a contrast 
to the sanguinary and summary, codes of slavery ! Exposi- 
tors of the Constitution who make it a "compromise" or a 
" guaranty" of slavery, have gravely defined " treason" to 
consist in freedom of speech and of the press directed against 
slavery, or in discussion of its character ! At every point, 
" the spirit of the Constitution" and "the spirit of slavery" 
come in harsh collision. Who can conceive of the very 
" spirit of this Constitution" making a " compact," a "com- 
promise" with slavery — taking it by the hand — making ami- 
cable terms with it — and signing a " guaranty" of the invio- 
lability, the perpetuity of its Lynch legislation — its enacted 
abrogation of all law — its annihilation of the same rights 
that the " spirit of the Constitution" was so solicitous to pro- 
tect? No marvel that those who can quote the " spirit of 
the Constitution" in favor of slavery, can likewise quote 



96 AMERICAN CONSTITUTIONAL LAW. 

the spirit of the Saviour's golden rule, for the same pur- 
pose ! 

"Spirit" of Constitutional Provisions hostile to 
Slavery. 

Full justice to " the spirit of the Constitution" as exhibi- 
ted by the distinguishing characteristics of its fundamental 
provisions, could not be done wiihout referring distinctly to 
those provisions which we have a right to claim as being", 
both in their letter and spirit directly levelled against the 
specific things wherein slavery consists, and providing for 
their removal : — referring, likew'ise, to those specific grants, 
to Congress, of the Constitutional powers by means of what 
that particular category of evils may be removed. 

Under this head we might class some of the provisions of 
the Constitution already adverted to, particularly the provi- 
sion, (Amendments, Art. 5.) that " No person shall be depri- 
ved of life, liberty, or property, without due process of law," 
and likewise Amendments, Art. 4. Scarcely less signifi- 
cant, in their bearing upon slavery, are the guaranties of the 
rights of conscience, freedom of speech and of the press, &c. 
But we allude now, more especially, to the guaranty, to 
every State in the Union, of a republican form of govern- 
ment, the restrictions of State power inhibiting orders of 
nobility, oligarchies, impairing the obligation of contracts, 
laws of attainder, State wars, troops in time of peace, and 
withholding the immunities of citizens from citizens of other 
States : connected as these provisions are with the confer- 
ring of ample powers upon Congress for regulating both 
foreign and domestic commerce, including the commerce in 
slaves, exclusive legis'ation over the Federal District, the 
needful regulation and government of Territories, power to 
carry out all the provisions and objects of the Constitution, 
but no power to establish or to maintain slavery in District, 
Territory, or elsewhere. Of the "spirit" manifested in 
these provisions there can be no rational doubt. 

It may be objected, perhaps, to our citing these provisions 
in proof of the anti-slavery spirit of the Constitution, that 
some of them are among the disputed points for the proper 
construction of which we are seeking, in the "spirit of the 
Constitution" (when ascertained) an umpire. So that we 
must not admit them as witnesses in a case wherein they 
themselves are to be tried. Be it so, then, that these fea- 
tures of the Constitution are to be put on trial before the 
Court, and, as parties concerned, must not be witnesses in 
their own cause. Having a case at Court, they have an 



CHAP. III. — SPIRIT OF THE CONSTITUTION. 97 

undoubted right to appear there, and in their own proper 
names and habiliments. If the bare announcement of their 
names, the cut of their garments, their countenances, form, 
gait, and shibboleth of speech, should reveal to the Cotm 
and jury their affinity with the " spirit of the Constitution" 
and dissimilarity from the spirit of slavery, why — there is 
no help for that. The old fables may represent Justice as 
being blindfold, but Judges and jurors, in this Court, are 
permittedjto have eyes. 

The Spirit of the Constitution is the Spirit of the 
CoivifiioN Law. 

Another internal evidence that the " spirit of the Consti- 
tution" is the spirit of Liberty, in other words, the spirit of 
uncompromising hostility to slavery, is to be found in the 
fact that it is identical in its character and arrangements, 
with the " spirit" of the Common Law, in the presence and 
at the touch of which, slavery instantly expires. 

We will, first, establish the fact that the " spirit of the 
Constitution" is identical with the spirit of the Common Law, 
and, then, the fact that the Common Law never tolerates, 
for a single moment, or under any conceivable circumstances, 
the existence of slavery. 

" The Common Law is the grand element of the United States Consti- 
tution. All its fundamental provisions are instinct with its spirit; and 
its existence, principles, and paramount authority, are presupposed 
and assumed throughout the whole. The Preamble of the Constitution 
plants the standard of the Common Law immovably on its foreground: — 

" ' We, the People of the United States, in order to establish jus- 
tice, &c, do ordain and establish this Constitution,' thus proclaiming 
devotion to justice, as the controlling motive in the organization of 
the Government, and its secure establishment the chief end of its aims. 
By this most solemn recognition, the Common Law, that grand legal 
embodiment of ( justice,' and fundamental right— was made the grounel 
work of the Constitution, and intrenched behind its strong munitions. 
The second clause of Sect. 9, Art. 1 ; Sec. 4, Art. 2, and the last clause 
of Sect. 2, Art. 3, with Articles 7, 8, 9. and 13, of the Amendments, are 
also express recognitions of the Common LAWas the presiding genius 
of the Constitution.*' — Weld's Power of Congress, qc. page 13. 

" Who needs be told that slavery makes war upon the principles of 
the Declaration of Independence and the spirit of the Constitution, and 
that these and the principles of Common Law gravitate towards each 
other with irrepressible affinities, and mingle into one ? The Common 
Law came here with our pilgrim fathers-, it was their birthright, their 
panoply, their glory, and their song of rejoicing in the house of their 
pilgrimage. It covered them in the day of their calamity, and their 
trust was under the shadow of its wings. From the first settlement of 
the country, the genius of our institutions and our national spirit have 
claimed it as a common possession, and exulted in it with a common 
pride. A century ago, Gov. Pown all, one of the most eminent consti- 
tutional jurists of colonial times, said of the Common Law — 'In all the 
colonies, the'Common Law is received as the foundation and main body 
of their laws.' In the Declaration of Rights made by the Continental 
Congress, at its first session, in '74, there was the following resolution : 

7 



93 AMERICAN CONSTITUTIONAL LAW. 

* Resolved, that the respective colonies are entit'ed to the Common Law 
of England, and especially to the great and inestimable privilege of being 
tried by their peers of the vicinage according to the coarse of that law.' 
Soon affer the organization of the General Government, Chief Justice 
Ellsworth, in one of his decisions, upon the bench of the United States 
Supreme Court, said, ' (he Common Law of this country remains the same 
as before the revolution.' Chief Justice Marshall, in his decision in the 
case of Livingston vs. Jefferson, said, 'When our ancestors came to 
America, they brought with them the Common Law of their native 
country, so far as it was applicable to their new situation, and I do not 
conceive that the revolution in any degree changed the relations of man 
toman, or the law which regulates "them. In breaking our political 
connection with the parent State, we did not break our connection with 
each other. 1 [Hall's Law Journal, Reiv Series.] Mr. Euponceau, in his 
' Dissertation on the Jurisdiction of Courts, in the United States,' says, « I 
consider the Common Law of England, the jus commune of the United 
States. I think I can lay it down as a correct principle,, that the Com- 
mon Law of England, as it was at the time of the Declaration of In- 
dependence, still continues to be the national law of this c untrt, 
so far as it is applicable to our present state, and subject to the modifi- 
cations it has recive. there, in the course of half a century.-" Chief Justice 
Taylor of North Carolina, in his decision in the case of the State vs. 
Reed, in 1823. Hawk's N. C. Reps. 454, savs, < A law of PARAMOUNT 
OBLIGATION To THE STATUTE was violated bv the offence— 
COMMON LAW, founded on the LAW OF NATURE, and confirmed 
by REVELATION.' The legislation of the United States' abounds in 
recognitions of the principles of the Common Law asserting their para- 
mount binding power. Sparing details, of which our national State papers 
are full, we illustrate by a single instance. Ic was made a condition 
of the admission of Louisiana into the Union, that the right of trial by 
jury should be secured to all her citizens — the United States Government 
thus employing its power to enlarge the jurisdiction of ihe Common 
Law as its great representative^"* — Weld's Power of Congress, <§-c, 
page 14. 

Having thus identified the "spirit of the Constitution," 
and (along with it) the "spirit" of American Juris- 
prudence, with the "spirit" of the Common Law, we will 
now look at the bearing of this spirit of the Common Law 
upon the American Slave System. 

Specimens of Common Law. 

"The Common Law knows no slaves. Its principles annihilate 
s'avery wherever they touch it. It is a universal, unconditional, abolition 
act. The declaration of Lord Chief Justice Holt, that, 'by the Com- 
mon Law no man can have property in another,' is an acknow- 
ledged axiom, and based upon the well known Common Law definition 
of property, viz : ' The subjects of dominion or property are THINGS, as 
contra distinguished from persons.' " — lb. page 13. 

The following are also among the maxims of the Com- 
mon Law : 

" The law favors liberty."— Wood's Inst. Book 1, chap. 1, page 25.— 
Co\cS 1st Inst. Book 124, and 2d Inst . 42, 115. 

"The law favoreth a man's person before his possessions." — Nayes' 
Maxims, pages 6 and 7. 

" Whenever the question of liberty seems doubtful, the decision must 
be in favor of liberty."— Digest Lib. 20, Tit. 17, Leg. 20.' 

* Another fact, conclusive of the illegality of slavery in Louisiana, for this 
w.is equivalent io a condition that she should abolish slavery. In this parti- 
cular, at all events, Congress seems to have recognised its right and dutv to 
secure to Louisiana, "a republican form of government."— Author. 



GHAP. III. SPIRIT OF THE CONSTITUTION. 99 

" The law therefore which supports slavery and opposes liberty, must 
necessarily be condemned as cruel, for every feeling of human nature 
advocates liberty. Slavery is introduced through human wickedness, 
but God advocates liberty, by the nature which he has given to man. 
Wherefore, liberty torn from man, always seeks to return to him, and it 
i3 the same with every thing which is deprived of its native freedom. 
On this account it is, that the man who does not favor liberty, must always 
be regarded as unjust and cruel; and hence the English law always 
favors liberty."— Chancellor Fortescue, de laudibus legum. chap. 42, 
page 101. 

" Law favoreth liberty and dower. Law regards the person above 
his possessions — life and liberty, most." — Principia Legis ct Equitatis. p. 56. 

" Those rights which God and nature have established, and which are 
therefore called natural rights, such as life and LIBERTY, need not the 
aid of human laics, to be more effectually vested in EVERY MAN, than 
they are. Neither do they receive any additional strength, when de- 
clared by the municipal laws, to be inviolable. On the contrary, NO 
HUMAN LEGISLATION HAS POWER TO ABRIDGE OR DESTROY 
THEM, unless the owner shall himself commit some act, that amounts 
to forfeiture." — Introduction, Sect. 2. 

" Tne law of nature, being coeval with mankind, and dictated by God 
himself, is of course superior in obligation to any other. It is binding 
overall the globe, in all countries, and of all times. No human laws 
have any VALIDITY", if contrary to this, and such of them as are 
valid, derive all their for<?e, and all their authority, mediately or im- 
mediately, from this original." — lb. 

" The inferior law must give place to the superior — man's laws to 
God's laws." — Hoycs' Maxims. If therefore any statute be enacted, con- 
trary to these, it ought to be considered of no authority in the laws 
of England." 

" Usagre and custom, generally received, have the force of law." — 
Hale's History of Common Law, p. 65. ''Because custom, derived from 
a. certain reasonable cause, takes the place of law. 5 ' — Littleton Lib. 2, 10. 
Sect. 149. 

" But when custom is adopted without reason, it ought rather to be 
called usurpation than custom." " Because, in judging of customs, 
strength of reason is to be considered, and not length of time. The reason 
which supports them ought to be regarded, and not the length of time, 
during which they have prevailed." 

" Two incidents are indispensable to validity of custom or usage. 1st. 
A reasonable commencement, (for all customs or prescriptions which are 
against reason are void,)' 2d. Continuance without interruption." — 2d 
Inst. p. 140. 

"Evil customs ought to be abolished." — Littleton 2d Inst. 2, chap. 2, p. 
141. On which Sir Edward Coke remarks, that " every use (or custom) 
is evil, which is against reason." 

" VV here the foundation is weak, the structure falls." — Noyes^ Maxims, 
p. 5. " What is invalid from the beginning, can not be made valid by 
length of time." — lb. p. 4. 

" The reasonableness of law is the soul of the law. — Jenks. Ceut. 45. 

" This law is written upon the heart of every man, teaching him what 
to choose and what to refuse. What is written by reason in the heart, 
can not be effaced: neither is it liable to change, either from place or 
time, but ought to be preserved every where, by all men. For the 
laws of nature are immutable; and the reason of their immutability is 
this, that they have for their foundation, the nature of things, which is 
always and every where the same." — Doct. fy Stud. p. 2. 

"Against these, there is no prescription, or statute, or usage; 
and should any be enacted, they WOULD NOT BE STATUTES, or 
usages, but corrupt customs."— lb. p. 5. 

" If any human law shall allow or require us to commit it [murder, 
mentioned by way of illustration,] we are bound to transgress that 
human law, or else we must offend both the natural, and the divine." — 
Blackstone. 



100 AMERICAN CONSTITUTIONAL LAW. 

"If it be found that a former decision (respecting a point in Common 
Law,) is manifestly absurd and unjust, it is declared, not that such a 
sentence was bad law, but that it is not law." — lb. 

"It is generally laid down that Acts of Parliament, contrary to reason, 
are void." — lb. 

"Prof. Christian, the distinguished annotator of" Judge Blackstone, 
decides that a Judge ought to resign his office, rather than allow himself 
to be the organ of the execution of an iniquitous law." 

" Derived power can not be superior to the power from which it is 
derived." — Noyes* Maxims, p. 3. 

" The lawful power is from God alone, but the power of wrong is from 
the devil and not from God; and whose soever work a king shall do, Ms 
servant he is, whose woik he does. Wherefore, when he does justice, 
he is the minister of the Eternal king, but when he does unrighteousness, 
he is the servant of the devil." — Bracton. Lib. 3, Chap. 9, p. 106-7. 

"Fox* he is called a king (a ruler,) for ruling righteously, and not 
because he reigns. Wherefore he is a king, when he governs with 
justice, but a tyrant, when he oppresses the people committed to his 
charge." — lb. 

" When an act of Parliament is against common right or reason, or 
repugnant, or impossible to be performed — the common law will control 
it, and adjudge such act to be void." — 8 Co!ze % s Reports, 118. 

(i An act of Parliament may be void from its first creation, as an act 
against natural equity— -for jura natural sunt immutabilia — sunt leges 
legum— (the laws of nature are immutable — they are the laws of laws.) 
But this must be a very clear case — and judges will strain hard rather than 
interpret an act void, ab initio."— Hobart's Reports, p. 87. 

See also Bascon's abridgment "Statute," A. Vol. 6, p. 368. * 

Power of the Common Law. 

The reader will please to understand that he has been 
perusing- extracts, not from the " fanatical" proceedings of 
an anti-slavery Convention, but from the venerated and au- 
thoritative volumes of the Common Law — the same Com- 
mon Law that is so manifestly the basis and ground work 
of all the fundamental provisions of the Constitution of Ike 
United States : the same Comtnon Law in which every man 
finds the chief guaranty of his rights. If we can understand 
the "spirit" of the Common Law, we can understand the 
"spirit of the Constitution" by which we are to interpret 
and construe its disputed provisions. How much of a "com- 
promise" or " guaranty" of slavery, "the spirit of the Con- 
stitution" will sanction, the reader can judge. t 

These principles of the Common Law, being connected 
with the British Constitution as they are with ours, abolish- 
ed slavery in Great Britain, by the decision of Lord Mans- 
field, in the Somerset case, in 1772. Is the thought to be 
admitted, for a moment, that the " spirit of the Constitution" 

*" Judge McLean of the United States Supreme Court, has also'recently 
decided that statutes against fundamental morality are void. Indeed, no 
principle of the common law is better settled, or can be supported by higher or 
more numerous authorities." — Christian Freeman, Sept. 19, 1S44. 

t We will likewise ask the reader to study carefully these Common Law 
maxims, to fix them in his memory, and note the page for future reference. We 
shall have occasion to refer to them again, for other purposes than to ascer- 
tain the spirit of the Constitution of 1787-9. They have an independent and 
inherent power, in themselves. 



CHAP. III. SPIRIT OF THE CONSTITUTION. 10 1 

of the United States is. less friendly to liberty, less potent 
for its protection, less hostile to despotism, or less. efficient 
for its overthrow — in a word, less republican, than the Con- 
stitution of a limited monarchy, like Great Britain ? Did 
the American Revolution, and the Declaration of Indepen- 
dence retard, or thrust back, the march of human freedom 
and human improvement, instead of urging it forward? 

The Constitution of the United States, both in its letter 
and its spirit, is moulded and fashioned upon the model of 
the Common Law, and instinct with its life-inspiring spirit, 
throughout. Whereas the Constitution of Great Britain, 
that, in the structure of the government, received its dis- 
tinctive shape and texture before the principles of the Com- 
mon Law began to be distinctly understood, received after- 
wards, into its old stock of monarchical and aristocratic in- 
gredients, but comparatively few grains of the democratic 
principles of the Common Law — yet they proved sufficient 
to leaven the whole lump with the spirit that abolished negro 
slavery, first in the Island itself, and afterwards in its de- 
pendencies, Asiatic and American. By our dismemberment 
from Great Britain, are we then to become less free and se- 
cure than British subjects ? While " slaves can not breathe 
in England" nor in her colonies, can freemen ftnd no secu- 
rity in America? Have we fallen so low in the sight of all 
the nations ? 

No! Thus it can not be. Thus it shall not be. Thus, 
constitutionally, legally, it IS NOT! Slavery in these 
United States, is sheer usurpation, and abuse, from begin- 
ning to end ; a nuisance, demanding judicial, (not to say 
legislative,) removal. Every slave held in America, is un- 
lawfully held, and in defiance of American Constitutional 
Law. One single consideration is conclusive of the whole 
matter, and it is simply this : — The Constitution of the United 
States, yes ! — the Constitution of 1787-9, is identical in its 
spirit with the spirit of the Common Law. It is the legiti- 
mate child, it is the well constructed instrument of the Com- 
mon Law. It is the embodiment of the Common Law, re- 
affirming its provisions, and constructing and commissioning 
the Federal Government to carry those provisions into ef- 
fect. [To say that it is not this, is to say that it is a mere 
confederacy, and no civil government at all.] And the 
Common Law, wherever recognized, wherever permitted to 
touch the statute book, to enter the Court of Justice, or to 
imprint the soil with the sole of her foot, is one uncompro- 
mising and universal act of emancipation and abolition. To 
say that there can be constitutional slavery in the United 



102 AMERICAN CONSTITUTIONAL LAW. 

States — slavery tolerated by the Constitution — is the same 
thing as to say, that there is Common Law slavery in the 
United States ; an absurdity that, in its own proper form, 
no sane man, perhaps, has ever yet been found to utter. 

Are we traveling beyond the record ? Anticipating a de- 
cision beforehand, while our argument is unfinished ? Well, 
then, let us summon further witnesses. If the chimera of 
constitutional slavery has as many lives as popular tradi- 
tion attributes to another " domestic" animal among us, 
with its stealthy movements and its sharp claws, there are 
weapons enough in reserve, to dispatch it. 

SECTION III. 

" SriRiT of the Constitution" as attested by History, 

AND BY EMINENT CIVILIANS AND JURISTS. 

If the shape of the Constitution, its gait, its countenance, 
its air, its sayings, its alliances, its devisings, and its doings, 
have not sufficiently manifested its "spirit," we will now 
call in the aid of witnesses, who are reputed to have stood 
nearer to it, and to know more about it, in its earlier days, 
in its origin, its birth-place, its parentage, its nursing and 
swaddling, than ourselves. 

" The spirit of the Constitution," if sought, out of the in- 
strument itself, and if sought by historical testimony, is to 
be sought in "the spirit of the age" and nation, in which 
the Constitution was born. The question becomes a question 
of the leading purposes, aims, objects, and principles, that 
gave birth to the Constitution — that preceded it — that de- 
manded it — that brought it into existence. 

To know "the spirit of the Constitution" then, we must 
take a portrait of the " spirit of seventy-six !" If that 
spirit, like the prophet Samuel, is buried out of sight of the 
present generation, and if, " because the Lord has departed 
from them," and the well recorded words of the seer will 
not suffice them, they must needs demand a vision of the 
"spirit" itself— let them strengthen themselves for the s'ight, 
lest they " fall straightway all along on the earth, and are 
sore afraid at its words," when it lises before them, like 
" gods ascending out of the earth." It comes ! It comes ! 
" An old man covered with a mantle" — its declaration of 
self-evident truths burning from its lips — its right hand, lift- 
ed to heaven, in solemn appeal to " the Supreme Judge of 
the world, for the rectitude of its intentions" — while "in the 
name and by the authority of the good people of these colo- 
nies" — "with a firm reliance on the protection of Divine 
Providence" — "for the support of this declaration," and 



CHAP. III. — SPIRIT OF THE CONSTITUTION. 103 

pledging (on behalf of those people) "their lives, their for- 
tunes, and their sacred honor" — it affirms, (as founded on 
"duty" and on "right,") its act of separation from the peo- 
ple and government of Great Britain ; "TO INSTITUTE 
A NEW GOVERNMENT, laying its foundation on such 
principles, and organizing its POWERS in such FORM" 
as "shall seem most likely" to "secure those rights for 
which governments are instituted among men" — " holding 
these truths to be self-evident, that ALL MEN are created 
EQUAL, that they are endowed by their Creator with cer- 
tain INALIENABLE RIGHTS, among which are life, 
LIBERTY, and the pursuit of happiness." 

Such is the "spirit of seventy -six." Will it be pretended 
that that "spirit" was dead and buried, without hope of re- 
surrection, in less than thirteen years after its memorable 
" Declaration?" Will it be pleaded that " the spirit of the 
Constitution" of 1787-9 is not identical with the " spirit of 
seventy-six" — pursuing, in the Declaration and in the Con- 
stitution, one and the same end ? 

Was the solemn pledge of '76 unredeemed, nay, deliber- 
ately broken, by the Constitution of 1787-9 ? 

Is the "spirit of the Constitution" of 1787-9, the deadly 
antagonism of " the spirit of seventy-six 1 ?" This it must be, 
if it either " guaranties" slavery, or holds any manner of 
"compact" or "compromise" with it? And then, it be- 
comes the deadly enemy of the nation's freedom) instead of 
its servant and protector ! 

We have not room to cite a tithe of the concurrent testi- 
mony of that period. We might notice that the "Declara- 
tion of self-evident truths" was likewise a declaration of well 
recognized and oft reiterated truths — that the language of 
that national document was not only the language of the 
Common Law, but the language, like wise — almost to plagia- 
rism— tof the popular and widely current anti-slavery litera- 
ture of those times. We might cite the anti-slavery pledge 
of the Continental Congress of 1774, the solemn denial, by 
the same Congress, in 1775, that " the Divine Author of our 
existence intended a part of the human race to hold an abso- 
lute property in, and unbounded power over others." We 
might cite the testimony of Mr. Jefferson, in his Notes on 
Virginia, towards the close of the Revolutionary WaV, that 
the anti-slavery sentiment was gaining ground "since the 
origin of the present Revolution" and the way preparing 
" for a total emancipation." We might recite the anti- 
slavery efforts, (as well as writings,) of Dr. Rush, John Jay, 
Alexander Hamilton, and Benjamin Franklin, at that period, 



104 AMERICAN CONSTITUTIONAL LAW. 

and so onward, during the progress of measures for forming 
the present Constitution,* and after its adoption. This, in 
connection with the actual abolition of slavery, and the 
adoption of measures for this end, in a number of the States, 
and the generally expressed belief that these measures were 
about to be extended into all the other States. The acts of 
Congress, already mentioned, just before, and confirmed 
again just after the adoption of the Federal Constitution, 
forever abolishing slavery in the North West Territory, to 
the end that the Territory might be formed into " republi- 
can States and have no slavery." Nor could we well omit 
the "Observations on the American Eevolution," published 
by Congress in 1779; containing this declaration: — "The 
great principle (of government) is, and ever will remain in 
force, that all men are by nature free, and so long as we 
have any idea of justice, we must associate that of human 
freedom. It is conceded on all hands, that the right to be free 
can never be ALIENATED.! We might mention too, the 
statement of Judge Wilson, one of the members of the 
Convention that framed the Constitution, which he made 
in the Penns} r lvania Convention for its ratification, the same 
year, that the Federal Constitution had " laid the founda- 
tion 'for banishing- slavery FROM THIS COUNTRY:"— 
and in accordance with this, the anti-slavery petition of 
Franklin, (another member of the Convention that formed 
the Constitution,) as President of the Pennsylvania Aboli- 
tion Society, praying Congress, in 1790, to " secure the 
blessings of liberty to the people of the UNITED STATES," 
"without distinction o/COLOR."t To this we might add 
the declaration of Washington that slavery ought to be abol- 
ished by legislative authority, and that his vote should be 
given for the measure. We might add the testimony, not 
only of Madison, Pinckney, and Jay, but also of Patrick 
Henry, Grayson, Tucker, Wythe, Pendleton, Lee, Blair, 
Mason, Page, Parker, Randolph, Iredell, Spaight, Ramsay, 
Martin,McHenry,Chase, Bayard, Rodney, Rawle, Buchanan, 

* Hamilton and Franklin were members of the Convention that framed the 
Constitution. Rush and Franklin were signers of the Declaration of Indepen- 
dence. 

t Here, by the bye, we have another definition of a "republican form of gov- 
- ernm.ent" which we omitted to quote in its proper connection, in our second 
chapter. It furnishes also, a definition of that "justice" which is promised in 
the Preamble of the Constitution, and affirms (what we shall have occasion to 
insist upon by and by) that the great anti-slavery principle of the'Declaration 
of Independence, is not only " the 3pirit of the Constitution" of 1787-9, but 
" will ever remain n» force" whether with the concurrence of parchment Con- 
stitutions or without them. 

{ There was no District of Columbia at that time, and no Territory in which 
slavery had not already been abolished by Congress. Very manifestly, then, 
Dr. Franklin petitioned for the abolition of slavery in the States, and by the 
Federal G**trnmtnt which he had assisted in framing— a fact that has been 
* M * i >4 t*, im recent p*»-»l*T»rf reports in Congress. 



CHAP. III. SPIBIT OF THE CONSTITUTION. 105 

Wilkinson, Pleasants, McLean, Anthony, Bloomneld, Gal- 
loway, Johnson, Dawes, Scott, Gerry, Rice, Brown, Gamp- 
bell, &c, &c. A list including the most prominent states- 
men of the South as well as the North, proclaiming before 
the sun, that slavery was a fast waning system, that must 
speedily fall. 

And, what is more significant than any thing else, so over- 
whelming was this spirit of abolition, during the period 
from 1774 to 1790, that the voice of opposition was hushed! 
Luther Martin of Maryland, is reported as having made a 
powerful anti-slavery speech in the Convention that framed 
the Constitution, but it is not on record that a solitary mem- 
ber moved a tongue in reply. So far from there being a 
pro-slavery excitement at the South, every southern mem- 
ber of Congress voted for the abolition of slavery, in the 
North Western Territory, and the public press in Virginia 
was loud in its condemnation of slavery. 

But we must pause. It would require a much larger 
book than the one we are now writing, to present any thing 
like an adequate expression of the ANTI-SLAVERY 
" SPIRIT OF THE AGE" in which the Federal Consti- 
tution was framed and adopted. About ten pages of Weld's 
"Power of Congress over the District of Columbia" — com- 
mencing on page 25, is occupied with a condensed specimen 
of the language of eminent statesmen of that period, on the 
subject, which the reader would do well to examine. 

The evidence is overwhelming, that the prevailing u spirit 
of the age" that produced the Federal Constitution, was an 
anti-slavery spirit, and that this spirit was manifest in the 
leading minds by which the Constitution was projected, and 
adopted as well as framed. The pretence of a " compact" 
— a " compromise"— a " guaranty" in the Constitution, or 
at the basis of it, in favor of slavery \ becomes too absurd 
to be discussed without irony. 

Extent of the National Power. 

The " spirit of the Constitution," in respect to slavery is 
sufficiently apparent. " The spirit of the Constitution" in 
respect to the powers essential to be granted, and intended 
to be conferred, upon the Federal Government, constitutes 
a distinct branch of inquiry, to which we will now turn. 

The letter of the constitutional provisions on this subject, 
we have considered elsewhere, and have found them amply 
sufficient to authorize the abolition of slavery. And what 
reason have we to suppose that the spirit of the Constitu- 
tion, in this respect, is behind the strict letter of its provi- 



106 AMERICAN CONSTITUTIONAL LAW. 

sioriS ? What is there, in the instrument itself, in the struc- 
ture of the Federal Government it authorizes — what is there 
in the history of the times, what was there, in the wants or 
the wishes of the people, that should indicate that the strict 
letter of the Constitution, in this particular, is not in accord- 
ance with its spirit and design? 

The whole framework of the Federal Government, as 
detailed in the provisions of the Constitution, including- its 
restrictions of State power, reveals to us the fact that a 
Government, not a Confederation, a Government not merely in 
name but in fact, was intended, was authorized and institu- 
ted, by the instrument containing the organic law of the 
Government, and declaring itself io be " the supreme law of 
the land." And there is no such thing as a civil or political 
government, by the definition of any eminent civilian or 
jurist, that does not possess the power to es'ablish justice, 
secure the blessings of liberty, protect individual rights, and 
" execute judgment between a man and his neighbor." 
"When the laws have declared and enforced all this" — as 
Mr. Jefferson hath it — " they have fulfilled their functions." 
To talk of a civil or political government that does not pos- 
sess this power, is to talk absurdity, self-contradiction, and 
nonsense. It is to speak of a thing as existing and not ex- 
isting at one and the same time. 

The old "Articles of Confederation" between the States, 
had been entered into, in 1778. This arrangement had 
been found necessary to clothe in a more formal manner, the 
" Continental Congress" with the powers the national exi- 
gencies had been found to need. Until, then, the Declara- 
tion of Independence, establishing the principles and defin- 
ing the objects of the new government, but entering very 
little into details, had constituted, along with the Common 
Law, the only distinctive Constitution o\ " the United States" 
which that Declaration had affirmed to exist. 

And in these Articles of Confederation, a certain amount 
of " power and jurisdiction" (evident attributes of a civil and 
political government) had been — to use its own words — 
"expressly delegated to the United States in Congress assem- 
bled." The object of these powers was affirmed to be u the 
more convenient management of the general interests of the 
United States." In many important particulars, the powers 
that would have pertained to separate disunited States, (such 
by the bye, as "the United States" described in the Decla- 
ration of Independenceihat gave birth to them, never were,) 
did not, as a matter of stipulated arrangement, pertain to 
the States under the Confederation. Among ether things, 



CHAP. III. SPIRIT OF THE CONSTITUTION. 107 

they could grant no titles of nobility, nor keep vessels of war 
or other armed force, in time of peace, nor without leave of 
the United States — neither could they engage in war, unless 
actually invaded — circumstances sufficiently indicative of 
their limited powers, and of the dependence of the indivi- 
dual State upon the Confederacy. Congress, with the con- 
current consent of nine States, &c, &c, were to exercise 
the "sole and exclusive right of determining on peace and 
war." — Were to determine controversies between different 
States, were (exclusively) to receive and send foreign am- 
bassadors, enter into treaties and alliances, manage allafTairs 
with the Indians, fix the standards of coins, weights and 
measures, establish post-offices, &c, &c. 

Nevertheless, after the experience of nine years, it was 
found that the powers of Congress were not sufficiently ex- 
tensive to secure to THE PEOPLE the full benefits that a 
NATIONAL GOVERNMENT ought to confer, and the 
Preamble to the present Constitution may afford us some 
hints of those ascertained defects, as may likewise those 
specific provisions in favor of liberty which have already 
been discussed ; particularly the Amendments. Hence, the 
new Constitution was formed. 

It is known that the delegates to the Federal Convention 
came together with various and discordant views of the de- 
gree of power which the National Government should pos- 
sess, and that the proper adjustment of power between the 
State and National Governments, involving the difficult if 
not impracticable problem of reconciling a National Govern- 
ment with the independency of the States, occupied by far 
the greater part of the time of the Convention. This pro- 
blem indeed, along with the connected one, of properly ad- 
justing the relative power of the larger* and the smaller 
States (not the Northern and Southern* the slaveholdingor 
the non-slaveholding)t and allaying the rising jealousies be- 
tween them, drew out the greater part of the debates in the 
Convention. And those delegates who came into the Con- 
vention strongly prejudiced and even pledged against the 
conferring of larger powers upon the National Government, 
found either their own views modified bv the facts and ar- 



* Massachusetts, Pennsylvania, and Virginia,, were then the large Spates 
whose power was feared. 

t Nearly all the States if not all, were then slaveholding States, and not one 
of them expected long to remain so — a fact that may well account for the little 
attention piid in the Convention, to that subject, and throwing an air of the 
ridiculous around the grotesque pretension of a " compact" — "compromise" 
— or " guaranty" on that subject. 



108 AMERICAN CONSTITUTIONAL LAW. 

guments adduced in the debate, or else found themselves in 
an inconsiderable minority, at the close of the Convention.* 

We may be certain, then, of two things — first, that the 
words employed in the Constitution were not inadvertently 
used — second, that the powers conferred were not hastily 
and inconsiderately bestowed. What those powers are, the 
Constitution distinctly states. 

Nor was the Constitution adopted without a public and 
wide spread agitation and discussion of this very point. 
The adoption of the Constitution was opposed on the ground, 
chiefly, of its too ample bequest of powers to the Federal 
Government, to the detriment or the danger of "State 
Rights." Yet, notwithstanding all this, and although the 
vast abilities and almost unbounded influence of Mr. Jeffer- 
son and his friends were thrown into the scale of opposition, 
yet the overwhelming majority in favor of ratification, (in- 
cluding the mass of those statesmen and of the citizens, who 
afterwards, and oh other grounds, rallied round Mr. Jeffer- 
son and elevated him to the highest office in the Govern- 
ment,) very soon decided the question, and such a degree 
of enthusiasm prevailed, that, from that day to this, few 
statesmen, however jealous of "State Rights" and fearful of 
the National Power, have adventured to find fault with the 
provisions of the Constitution in this particular. 

And what is still more significant, no class of statesmen, 
not excepting Mr. Jefferson and his particular friends, have 
ever found the constitutional powers of the Federal Govern- 
ment too extensive for their convenience, when charged 
with the administration of the national affairs. In his pur- 
chase of Louisiana, Mr. Jefferson admitted distinctly that he 
exceeded his constitutional powers ; at first he suggested an 
alteration of the Constitution, extending its powers for that 
purpose, but afterwards consoled himself with the thought 
that the popular assent to that measure made it as valid as 
a formal change of the Constitution could have done. And 
in his annihilation of all foreign and even coast-wise com- 
merce, by the long embargo, he gave a much larger construc- 
tion to the Federal Power over commerce than the total 
abolition of the domestic slave-trade (even upon Mr. Clay's 
identification of the slave-trade with slaveholding) would 
.^eguire. Mr. Madison, who once thought the establishment 
01 a National B:ink beyond the constitutional scope of the 

*For the correctness of these statements, we refer to "Secret Proceedings 
and Debates of the Convention that assembled in Philadelphia, in the year 1787, 
for the purpose of forming a Constitution of the United States of America, 
from the notes of the late Robert Yates, and copied by Jobs Lansing, Jr., mem- 
bers of that Convention." Albany, 1821. 



CHAP. III. — SPIRIT OF THE CONSTITUTION. 109 

Federal Power, was afterwards willing to see that power used 
for that purpose. And all who assent to the constitutionality 
of protective or prohibitory tariffs, claim a much higher and 
a much more questionable power for the Federal Govern- 
ment — in the view of any unprejudiced constitutional 
lawyer — than the power of abolishing slavery in the States — 
even allowing that the specific 'provisions of the Constitution 
in that direction, should be left out of the argument. 

It remains that we add some citations from approved con- 
stitutional expositors, attesting the powers which "the spirit" 
and letter of the Constitution confer on the government it 
authorizes and institutes. 

While the question of the adoption of the Federal Con- 
stitution was yet pending, and one of the main objections, 
as already noticed, was the excess of national, in opposition 
to State power, Alexander Hamilton, (who, along with 
Madison and Jay, was explaining and defending the Con- 
stitution in the papers called "The Federalist,") so far from 
concealing or explaining away this feature of the proposed 
Government, avowed and defended it in the bold language 
that follows : 

" But it is said, that the laws of the Union are to be c the supreme laic of 
the land.' What inference can be drawn from this — or what would they 
amount to, if they were not supreme ? It is evident they would amount 
to nothing. A LAW, by the very meaning of the term, includes supre- 
macy : It is a rule, to which those to whom it is prescribed, are bound 
to observe. 5 '— Federalist, No. XXXIII, page 175. 

In the same connection he shows the confusion and anar- 
chy that would ensue if the National Government were 
not to be invested with that supreme and paramount 
authority over the States which the Constitution describes. 
And in another article, setting forth "the defects of the 
present Constitution ' (meaning the then existing Articles 
of Confederation/ 1 ) the same writer says, 

" The next most palpable defect of the existing Confederation is the 
total want of a Sanction to its laws." — Federalist, No. XXI, page 110. 

In pursuing the subject, the writer among other things, 
makes the following significant suggestion : 

n Who can predict what effect a despotism, established in Massachusetts 
would have upon the liberties of New Hampshire or Rhode Island, Con- 
necticut or New York, ?»— lb. page 112. 

Sure enough ? And who could predict the effects of a 
despotism in Virginia, upon the liberties of Pennsylvania 
and Ohio ? More than Hamilton apprehended, has 

* It will be noticed here, that Hamilton considers the Articles of Confede. 
ration a Constitution , but "defective" because not conferring sufficient powers- 



110 AMERICAN CONSTITUTIONAL LAW. 

already been realized. But his suggestion furnishes a per- 
ti-ient comment upon the constitutional power of Congress— 
as construed by " the spirit of the Constitution" — under 
the clause that "guaranties to every State in this Union, a 
republican form of government." Coming as this hint did, 
from a known abolitionist, how happens it that the South 
took no alarm, if the South had then expected to perpetuate 
slavery? Neither this hint, nor his exposition of the supre- 
macy of the Constitution and the laws of Congress appear 
to have had any other effect than he desired, viz : to make 
the Constitution popular with the people, and secure its 
enthusiastic ratification. 

Mr. Madison, one of the most prominent members of the 
Federal Convention, and himself a slaveholder, in a speech 
in the first Congress under the new Constitution, May 13, 
1789, referring to that contemplated abolition by Congress 
of the African slave-trade, a measure that was then antici- 
pated to be identical, in effect, with the abolition of slavery 
itself, held the language that follows : 

" I should venture to say it is as much for the interests of Georgia and 
South Carolina, as of any State in the Union. Every addition they re- 
ceive to their number of slaves tends to weaken them and renders them 
less capable of self defence. In case of hostilities with foreign nations, 
they will be the means of inviting attack instead of repelling invasion. 
It rs a necessary DUTY of the GENERAL GOVERNMENT to 
PROTECT every part of the Empire against DANGER, as well external 
as internal. EVERY THING, therefore, which TENDS to increase 
this danger, though it may be a local affair, yet if it involves National 
Expense OR safety, it becomes a concern to EVERY PART OF THE 
UN TON, and is a proper subject for the consideration of those charged with 
the GENERAL ADMINISTRATION of the GOVERNMENT."— Cong. 
Reg. Vol. 2. page 310—11. 

The powers of the Federal Government in general, and 
in particular reference to slavery, according to " the spirit 
of the Constitution" as understood by Mr. Madison, may be 
gathered from this paragraph with sufficient distinctness. 
What a comment upon the miserable pretence that the North 
has no right to interfere — that there was a "compact," a 
"compromise," an" understanding" — nay, even a " guaran- 
ty," (as some have it) by which the Federal Government is 
precluded from touching the proscribed topic ! Yet who 
can fail to see that Mr. Madison's doctrine is but a fair ex- 
position of the power of Congress'to provide for " the general 
defence?" The " war power of Congress," as insisted on 
by John Quincy Adams, to abolish slavery in the States, is 
evidently but an approximation to the higher doctrine of Mr. 
Madison, as here expressed. And the official statements of 
the late Secretary of the Navy, Mr. Upshur, which no one 
pretends to call in question, may suffice to show that the 



CHAP. III. SPIRIT OF THE CONSTITUTION. 1 ] 1 

occasion for the prompt exercise of this constitutional power 
to abolish slavery has fully arrived. Even the item of "na- 
tional expense" Mr. Madison makes a sufficient cause for 
such action on the part of the General Government, even 
without the danger of a partial conquest and consequent dis- 
memberment of "the empire." And according to the best 
estimates, the " expence" of the necessary means of defence 
recommended by Mr. Upshur, could not fall short of two 
hundred millions of dollars, to begin with, to say nothing of 
the standing expense, afterwards, (of, say twenty millions 
per annum,) to maintain such a Navy and keep it in repair. 
One of these things, then, the National Government must 
and will, as a matter of fact, do : — either incur this expense, 
or abandon " the general defence" of the country, or " pro- 
vide for the common defence" by the only remaining means 
in its power, the exercise of its constitutional authority for 
the abolition of slavery in the States. 

Among Constitutional Jurists now on the stage, there is 
no one, perhaps, whose opinion would have more weight 
with those who would controvert our positions, than that of 
Judge Story. His participancy in the late decision of the 
Supreme Court in the case of Prigg versus Pennsylvania, 
will relieve him from the suspicion of any undue tendency 
to construe the provisions of the Constitution in favor of abo- 
lition. Let us hear his exposition of the powers of the Gen- 
eral Government: 

^ "If there be any general principle which is inherent in the very defini- 
tion of Government, and essential to every step of the progress to be made 
by that of the United Stafes, it is, that every power vested in the Govern- 
ment, is, in its nature sovereign, and included by the form of the term, 
the right to employ all the means requisite, and forcibly appli- 
cable to the attainment of the end of such power, unless they are except- 
ed in the Constitution, or are immoral, or are contrary to the essential 
objects of political society."* 

Assuming then, as Judge Story did, in common with oth- 
ers, that certain powers relative to the return of fugitive 
slaves, were vested in the General Government, it is easy 
to see how he drew the conclusion that the State Govern- 
ments could not, by any legislative provisions, interfere with 
the exercise of that power. Admitting his premises, the 
conclusion seems sufficiently logical, so long as we have 
any remaining conceptions of a Government of the United 
States. Fresh evidence is here furnished, by the bye, that 
standing on the commonly assumed premises of a constitu- 
tional "compact, compromise or guaranty" in favor of sla- 

*Quoted by Alvan Stewart in his Constitutional Argument, in the ''Friend of 
Man," October 13, 1S37. 



112 AMERICAN CONSTITUTIONAL LAW. 

very, there is no such thing as'avoiding conclusions utterly 
subversive of personal security and general freedom. It is 
high time, then, to examine the premises themselves, and 
to know whether we live under a free government or a des- 
potism. 

But we have made this citation, in this place, for the pur- 
pose of saying that the ample and sovereign powers vested 
in the Government of the United States — according to Judge 
Story, — powers in the legitimate exercise of which, (accord- 
ing to the late decision of the Supreme Court) the States 
can not interfere — are powers abundantly sufficient, in such 
an application, to secure the objects of the Preamble of the 
Constitution, and its other manifold provisions in favor of 
"justice" — -" liberty" — " general welfare" — " common de- 
fence," " republican form of government," &c, &c, and 
against " bills of attainder," Ci laws impairing the obligation 
of contracts" — " titles of nobility," "unreasonable seizures," 
and deprivation of "liberty, without due process of law." — 
These are "powers vested in the Government" by the letter 
and the spirit of the Constitution, while the " powers" to es- 
tablish slavery, hunt fugitives, kidnap freemen, or authorize 
others to do so, may be sought after, in the instrument, in 
vain. 

All the powers in the Federal Government, therefore, that 
the national abolition of slavery (legislative or judicial) calls 
for or requires, is precisely the same power that Judge Story, 
(in common with Hamilton, Madison and others) describe 
as belonging of necessity, to the Government of the United 
States — powers that Judge Story and the other Judges of 
the Supreme Court have actually used in support of slavery. 
So far as the powers of the Federal Government are concern- 
ed, the only difference between the clearly expressed and 
faithfully administered doctrine of Judge Story, and the 
doctrine contended for, in this chapter, is this: — viz. 1. 
Judge Story (in the case of Prigg vs. Pennsylvania) main- 
tains the supreme authority of National over State legisla- 
tion, in a case where the " power vested in the Government" 
viz : to seize or authorize the seizure of persons claimed as 
fugitive slaves — is a "power" not described nor specified in 
the Constitution — a power not to be made out by " strict 
construction" and grossly inconsistent with " the spirit" of 
the Constitution itself. 2. Judge Story wields this power 
of the Federal Government in favor of slavery and conse- 
quently against liberty : — we would wield the same federal 
power in favor of liberty and consequently against slavery. 



CHAP. III. — SPIRIT OF THE CONSTITUTION. 113 

Which application of that power will the American people 
prefer ? 

We have already remarked that those most tender of State 
rights and jealous of National power have gone quite as far 
as others in the use of the highest and even questionable 
federal powers. We may now add that the highest stretch 
of federal power has been made in support of slavery. The. 
purchase of Louisiana and the late decision of the Supreme 
Court furnish instances in point. To scruple the use of the 
same powers in favor of the legitimate and highest objects 
of power, that are commonly conceded and wielded in sub- 
version of those objects, is to bring the Government into ill 
odor and contempt. 

It is quite remarkable that the exceptions to the use of su- 
preme national power, laid down by Judg-e Story, are ex- 
ceptions that should have prevented him from giving his 
sanction to the late decision of the Supreme Court. A right, 
in the Government, to wield power- for the enslavement of 
any human being, is a right that, in the nature of things, 
can never exist. Such a right the Constitution does not 
even 'pretend to confer, and consequently the exercise of such 
an assumed right is "excepted in the Constitution," and its 
exercise is most notoriously and superlatively " immoral" as 
well as "contrary to the essential objects ofpolitical society." 
But, on the other hand, the use of the supreme power of 
government " to establish justice" and " secure the blessings 
of liberty" is emphatically the use of it for the very. " ends 
of such power" as explicitly specified in the Constitution it- 
self. Of course the Constitution can make no "exception" 
to such use ! No " exception" can be pointed out — no shadow 
of a provision that the ordinary and well known powers of 
civil government to abolish slavery shall not be exercised 
by the Government of the United States.* And the highest 
dictates of " morality"! are fulfilled by such an use of legis- 
lative and judicial power. And withut such an use, "the 

•Another consideration sufficient to show the absurdity of supposing t hn t 
by any " compact" or ''compromise" the National Government was precluded, 
from abolishing slavery. No one then questioned the legitimate power of civil 
government in general, to abolish slaveiy, and the exercise of that power to 
that end was the rising fashion ol the day, in this country. Yet in forming a 
civil government with supreme powers, no restriction was even attempted to 
be made, upon the power of the Government in thai direction. Of couise, the 
power of the Government, in thit particular, is the same with that of other 
governments. The absence of any such restriction proves that no such " com' 
fact" or i( compromise" was made. 

f Th u reider will please m notice this concession of Judge Story (in acoid- 
ance with the princip'es of Common Law) that the powers of civil government, 
though in Mteir «' nature sovereign" aie restricted and limited by the principles 
of" morality," an>l " the essential objects of politica) society." What becomes 
Ihen, of the law of 1793, and of the late decision of the Supreme Court ? 

8 



114 AMERICAN CONSTITUTIONAL LAW. 

essential objects of political society" can never be at- 
tained, and the Government fails of fulfilling the appropri- 
ate functions of all civil government. 

We claim, then, that the "spirit of the Constitution" is 
the spirit of liberty, the spirit of uncompromising hostility to 
slavery. And we claim that the "spirit of the Constitution" 
amply confers on the National Government the power to 
" establish justice"— to "secure the blessings of liberty" — 
to "provide for the common defence" — and consequently to 
abolish slavery. 

SECTION IV. 

THE CONSTITUTION CONSTRUED. 



To construe the Constitution or any portion or feature of 
it, is to fix, definitely, upon its true meaning, or some par- 
ticular portion or feature of it, and decide what application 
or bearing it has, upon some practical problem, particularly 
under consideration, at the time ; as, for instance, its bear- 
ing on slavery and the action of government, either for its 
support, or its overthrow. 

The " spirit of the Constitution" furnishes the rule by 
which we are to construe its provisions and their application 
and bearing on slavery and its abolition, in the present dis- 
cussion. 

This-" spirit of the Constitution" is nothing distinct from 
its general and predominant character. 

Everyman is known in the community in which he moves, 
and is designated as having this character or that, accord- 
ingly as such or such traits or qualities are found to predo- 
minate, in him. He is characterized by the qualities that 
are found to prevail in his movements, notwithstanding some 
particular incidents in his history may not seem well to 
harmonize or agree with that character. Just so, a Consti- 
tution of government has its distinctive, its appropriate, its 
predominant character, although some incidental provisions 
may present apparent or even real anomalies, or may be so 
expressed as to appear ambiguous, or come into dispute and 
litigation. 

If a man should die leaving a last will and testament, 
and some of its minuter provisions should seem anomalous, 
obscure, ambiguous, or should come into litigation, the Court 
would try to ascertain, both by an examination of the instru- 
ment itself, and by the well attested character, pursuits, ends, 
objects, partialities, antipathies, attachments, and consan- 



CHAP. III.- — SPIRIT OF THE CONSTITUTION. 115 

guinity of the deceased, what the general character, spirit, 
end, aim, object, and scope, of the instrument was, and then, 
in the light of that ascertained spirit and character of the 
instrument, determine what disposition to make of the con- 
troverted point. If, for example, the preamble in the prin- 
cipal item in the will should have consisted in the recital of 
the near affinity, ancient friendship, mutual labors, and in- 
valuable services of one certain Jonathan S?nith, well known 
to have been a near relative, a munificent patron, and a 
faithful partner in the business of the testator, declaring the 
said testator's intention, in this instrument, to give him his 
whole real estate — and if, in a subsequent part of the in- 
strument, after a minute description of the testator's home, 
mansion and principal landed property, it should go on to 
devise and bequeath the whole to a certain person whose 
name was so clumsily or imperfectly (perhaps fraudulently) 
written by the draftsman, as to have given rise to the contest 
whether it were the aforesaid Jonathan Smith or one noto- 
rious felon John Smith, proved in Court to have been a 
deadly enemy of the testator, who was always conspiring 
his ruin, who had often attempted to take his life, and whom 
the testator, at the very time of making his will, was busily 
intent on bringing to justice — what do you think, candid 
reader, the Court and jury would do with the very modest 
claims of this Mr. John Smith to the mansion and estate of 
the testator? — Settle but that one " delicate question" and 
you have comprised in a nut-shell the very gist and pith of 
the grave constitutional question at issue, before this great 
nation, at this moment. 

The general character and spirit of the Constitution with 
its affinities, its aims, and its plio-hted promises to liberty 
have been abundantly proved. They stand out in bold re- 
lief, in the fore front of the document itself, and are cor- 
roborated by all the concurrent history of the times in which 
it was written. Not less well attested and notorious is the 
hostile character of the felon slavery, that would have 
strangled " the spirit of the Constitution" — the spirit of sev- ' 
enty-six, in the cradle ; and that was doomed to the gibbet 
with the same breath that directed the draft of the Consti- 
tution ! Yet now it strides modestly into Court and claims 
the document as a deed of " guaranty" in its own favor ! It 
claims the hearth-stone, the resources, the entire domain of 
its hated rival, pretending to have derived its title from that 
rival's own voluntary bequest, as its beloved and favorite 
heir! And "constitutional lawyers" are found, fee-hungry 
enough to pronounce the claim valid, or long eared enough 



116 AMERICAN CONSTITUTIONAL LAW. 

to puzzle their spectacles over the " perplexing and difficult 
question !" 

One moment, and a brief space, we must devote to details. 

Is it still doubted by any one, whether the clause concern- 
ing "persons held to service and labor" may not possibly 
authorize the seizure and return of fugitive slaves ? Do the 
words of the instrument by any English Dictionary, admit 
of a possible construction to that import ? Was the instru- 
ment clumsily, or artfully, or ambiguously diafted by the 
penmen? Is it doubtful whether Jonathan Smith or John 
Smith, whether liberty or slavery should have the benefit of 
the disputed provision? Let "the spirit" — the general 
character of the Constitution turn the scale. 

Suppression of " insurrection" — protection against " do- 
mestic violence." What construction shall be put upon these 
disputed terms in the national "will and testament?" Is it 
"insurrection" to refuse to labor without wages? "Insur- 
rection" to rebel against slavery ? Or are the insurgents 
those who violate that liberty which the Constitution ensures? 
Is it " domestic violence" to run away from women-whippers 
and babe-stealers ? Or even to wrench the manacle and 
thumb-screw out of their hands ? Or, on the other hand, is 
"domestic violence" to be defined by the usages of slavery 
itself — the well-known practices of slaveholders? Who 
shall stand for the lawful heir, the presumptive devisee, the 
legitimate child of the " spirit of the Constitution" — the 
"spirit of seventy-six" — so far as this item of bequest is 
concerned ? Shall liberty or shall slavery inherit under 
the " will ?" The litigants are boih in Court. The jury 
will please to look at them, and decide. There stands the 
" peculiar" claimant with its driver's lash in its hands — his 
scales, for selling children by the pound, just before him — 
his blood-hounds, for hunting down honest husbands in search 
of their kidnapped and ravished wives, just behind him. 
This is one of the claimants under the bequest ! The other 
is plain Jonathan himself, with his free labor scythe on his 
arm, a liberty vote in his pock«'t, and the cap of liberty on 
his head. Which most resembles the testator, claimed as a 
father ? Which looks most like " the spirit of the Constitu- 
tion" and of seventv-six ? Gentlemen of the jury ! As de- 
scendants of the Pilgrim Fathers, what say you ? What 
say you, from luinker Hill and from Plymouth Eock — from 
.Monmouth and from Saratoga — which is the lawful heir? 
At the ballot box you will render your verdW ! 

Glance we now at the constitutional provisions claimed 
for liberty — for the consequent ejectment and banishment. 



CHAr. III. — SPIRIT OF TIIE CONSTITUTION. 117 

as an usurper, cf the slave power that has crept into the 
mansion house of the testator, and driven his children, in 
coffle gans:, on to the plantation, as slaves. There is the 
item of the " will" that puts the commerce of the Nation, 
foreign and domestic, into the hands, and under the juris- 
diction cf Congress, the representatives of the People, and 
of freemen. Next comes the item that " guaranties to every 
State in this Union, n republican form of government." 
Then come, in succession, the items that inhibit "bills of 
attainder," "laws impairing the obligation of contracts" — 
conferring "titles of nobility" — "making war" upon our 
citizens, or "keeping troops" in-time of peace, along with 
the items that secure a jury trial, and the benefits of the 
writ of habeas corpus. At last comes the codicil of " amend- 
ments" to the "will," securing freedom of speech, of peace- 
ably assembling, and of the press — security against "un- 
reasonable seizures" — deprivation of "liberty without due 
process of law" — "excessive bail— cruel and unusual pun- 
ishments" and providing "jury trial" where the value of 
twenty dollars is at hazard. Taking up these items, either 
in the gross or in detail — do they amount to a constitution-* 
al veto upon slavery, or do they not ? — We claim to hnve^ 
proved by the rules, and before the Court of "strict cow 
struction" that they do. Is it in the " spirit of the Con- 
stitution," and of seventy-six to reverse the judgment there 
obtained? Knot, then that judgment of the lower Court 
must stand, as the ultimate decision of the Jaw. 

But, suppose, for the argument's sake, that the proof be- 
fore the Court of strict construction had been less conclusive 
— that judgment had been suspended — nay, even that it had 
been rendered by that Court, against the claims of freedom, 
and that, on her appeal, instead of that of slavery, the cause 
were now in litigation here. What says the " spirit of the 
Constitution" and of seventy-six, to an issue like this? 

What can it say but, as its noble name and high office 
dictates, exalt the living " spirit" of the instrument, the 
" will," the Constitution, above mere dead letter, the words, 
the syllables, the alphabetical characters it employs ? 

Be it so, that the " word-catchers who live on syllables" 
can read no abolition of slavery in the " guaranty of a re- 
publican form of government," the exemption from " unrea- 
sonable seizures" — the security of liberty except " by due 
process of law" — nor yet in the prohibition of a caste of no- 
bles — f " bills of attainder" — of " laws impairing the obli- 
gation of contracts" — while, at the same time (strange to 
tell) they can find read " fugitive slaves" in "persons held 



118 AMERICAN CONSTITUTIONAL LAW. 

to service and labor," M from whom service and labor may 
be due" — can find " insurrection*' in the refusal to work 
without wages, and "domestic violence" in the attempt to 
escape from domestic violence! Be it so, that, on the argu- 
ment of dry technicalities we were wholly at fault, and that 
our opponents held the undisputed field as their own. What 
then? If there be any signifi:ancy in an appeal to "the 
spirit" of the Constitution, we may say of such, as the poet 
has said — ) 

" Commas and points they set exactly right, 
And 'twere a sin to rob them of their mite !" 

And common sense may. determine whether "the spirit" 
that solicitously guards against minor oppressions in minute 
details could tolerate the sum and the climax of all oppres- 
sions in the gross, and reduced to the most perfect system 
of which history furnishes any specimen, or of which the 
human mind can conceive. 

What if it were so, that the letter of the Constitution could 
not rightfully be claimed as a guaranty of such a specific 
form of "republican government," as excludes slavery — 
does not the living "spirit of ihe Constitution" and of this 
provision afford such a guaranty ? To what purpose, or for 
what object, shojild the form of a representative government 
be preserved, if the people, (instead of a select, a favorite 
caste of them) are not to be represented; nor republican 
principles honored, nor republican liberty and individual se- 
curity preserved ? Is ,v the spiiit of the Constitution" to be 
satisfied with the mere outward shell, without the vital es- 
sence of a republic ? 

What if it couldhe doubted or denied that the prohibition 
of "bills of attainder," and of laws " impairing the obliga- 
tion of contracts," were provisions distinctly and directly 
prohibitory of slavery — is it not nevertheless manifest that 
"the spirit" that must needs guard against ordinary bills 
of attainder and against such laws "impairing the obliga- 
tion of contracts" as are less oppressive than the code that 
vitiates the contracts of the laboring population of one half 
the States, is a "spirit" that can never consent to the in- 
comparably more extensive and unrelenting attainder of sla- 
very — the still more unlimited annihilation of contracts 
wrapped up in the slave code ? 

Whf.t if it tvere so that the prohibition of titles of nobility 
were not, in due form, a prohibition of the slaveholding 
casle, the more than villeinage or serfdom of their vassals ? 
Who does not see that the "spirit" that prohibits the 



CHAP. 111. SPIRIT OP THE CONSTITUTION. 119 

former, must b-3 still more irreconcilably hostile to the lat- 
ter ? 

What if it were so that the provisions against " unreason- 
able seizures" and against the deprivation of " liberty with- 
out due process of law," were provisions which technically 
considered, could not be directly claimed for the enslaved; 
— it would nevertheless be true that the living "spirit" and 
vital essence of such provisions demand and authorize the 
instant abolition of slavery. 

What if it were so that the benefits of jury trial, and of 
the habeas corpus were not particularly secured or provided, 
for the especial use of the fugitive slave : — can the living 
" spirit" of such provisions be satisfied — can it be preserved 
— in the presence of the Act of Congress of 3793, and the 
decision of the Supreme Court in the case of Prigg versus 
Pennsylvania? Let passing history answer. 

Most manifestly, if there be any significancy in an appeal 
to " the spirit of the Constitution" for the purpose of ex- 
pounding provisions like these, the exposition must be in 
favor of liberty and against slavery. 

And just at this point, before passing to another topic, we 
must pause to extend somewhat, an observation already 
thrown out in a note, in which it was remarked that the ab- 
sence of any restriction upon the Federal Government, of 
the ordinary, the universal power of a'l civil governments 
to abolish the slavery existing within their territorial limits, 
was proof positive that no such "compromise" or "guaran- 
ty" in favor of slavery had been made. We now add that 
this circumstance furnishes proof that the Federal Govern- 
ment DOES possess power to abolish slavery, and is bound 
io EXERCISE that power. 

Admitting, as all candid men must do, in review of the 
examination that has now been had, that there is nothing in 
the Federal Constitution establishing our National Govern- 
ment that restricts or prohibits that Government from the 
abolition of slavery, it follows— -first, that the common pow- 
ers of 'all civiigovernments to "execute justice between a 
man and his neighbor," and consequently to abolish slavery, 
pertain to the Government of the United States ; and conse- 
quently, second, that the same obligations rest on the Fed- 
eral Government to abolish slavery, that rest on every other 
government, on earth, in whose territorial limits slavery is 
practiced. 

Those who remind us that the Federal Government is a 
limited government, and therefore can not abolish slavery, 
always refer us, of course, to the Federal Constitution, for 



120 AMERICAN CONSTITUTIONAL LAW. 

the limitations of which they speak. But the Federal Con- 
stitution contains no limitations of the power of the Federal 
Government in the matter of slavery. That government, 
therefore, retains all the power over slavery that any other 
civil governments hold, and is charged with all the respon- 
sibilities, in respect to it, with which all olher civil govern- 
ments are charged. And consequently, even in the absence 
of such specific provisions as those we have considered — 
(the Guaranty of a republican form of government, the ex- 
emption from unreasonable seizures, inviolability of liberty 
except by due process of law, the prohibition to the States 
of bills of attainder, nullification of contracts, titles of no- 
bility, &c. &c.,) it would still be true that the Federal Gov- 
ernment is amply competent to abolish slavery; whether the 
Constitution be construed by "strict construction" or by 
*' the spirit" of the instrument itself.* 

All this would be true, even upon the supposition that 
any artificial compacts or written parchments, could possibly 
construct a civil government that should be a civil govern- 
ment, and yet not be vested with the power of securing in- 
alienable human rights: a proposition we shall not stop to 
discuss in this place, though it may require attention else- 
where. 

SECTION V. 

Special Pleadings : — their fallacy. 

And what has the claimant of constitutional slavery to 
say more, in support of the claim ? Or what reason can be 
given, why sentence of death should not be passed upon 
slavery itself? 

Are we to have a repetition of the cant phrases hitherto 

in use? " The compact," "the guaranty," "the com- 

' promises of the Constitution ?" Notable words these, 

once — but what do they avail now ? What has become of 

them ? 

* To this view it may be objected, that by Article 10, of the Amendments, 
the contrary rule is established, viz : that instead of the Genera! Government 
holding all the powers not prohibited; it holds none not specifically granted. 
To this it is sufficient to reply, that "the powers delegated to the United 
States" by the Constitution, do include the powers of a " government," (not s 
mere confederacy.) "of the United States." [See Art. !., Sec. 8, Clause 17.] 
And the "legislative," "judicial," and " executive" powers of that "govern- 
ment" are particularly enumerated, and the laws of the United States are de- 
clared to be " the supreme law of the land." These delegations of power com- 
prise a full description of the essential powers of a " civil government'* and 
the k< establishment of justice" is declared to be the end of the whole. Tne gen- 
eral powers thus delegated to the United States, (aside fiom specific provisions) 
are sufficient for the abolition of slavery, unless it can be shewn (which it can 
not) that such a particular exercise of power is prohibited in the Constitu- 
tion. 



CHAP. III. SPIRIT OF THE CONSTITUTION. 121 

Does the Constitution of 1787-9 contain the "compact?" 
If not, where e hall wg look for it ? Where is the document, 
or the record, that we may fasten our eyes upon it? In 
what law library shall we inquire for it? What is the 
name of the book and of the publisher that can put us in 
the possession of it ? In what public archives are they de- 
posited, and who are they that have ever gained access to 
them ? 

National "compacts," " compromises," and " guaranties" 
are wont, in this age of printing presses and of official de- 
positories and records, to have some tangible shape and 
form — some home and abiding place, where they may be 
examined and referred to, at pleasure. Not only the learn- 
ed civilian but the humble citizen is wont to possess copies 
of them. They are found on the rural mantle-piece, and 
on the book-shelf of the artisan. They are among the read- 
ing books of the school boy, and become familiar as house- 
hold words. Such are our Declaration of Independence, 
Articles of Confederation, and Constitution of the United 
States. 

Without a question, the Constitution, the Articles of Con- 
federation, and the Declaration of Independence, are the 
national "compacts" of these United States. If there are 
any others to be produced, where or what are they, or in 
whose hands are they to be found? 

We are sometimes told that if there had not been some 
" compromise" made in respect to slavery the southern States 
would not have come into the Union. It would seem a suf- 
ficient answer to say that the southern States did come into 
the Union, and that in the lorittcn compact the pretended 
"compromise" is no where to be found. If the southern 
States were so tenacious and jealous, is it credible that they 
would consent to leave the " compromise" out of the writing ? 
Did they trust to some " implied faith" and " tacit under- 
standing" that "was entered int", at the time, without being 
committed to paper? By whom was that "implied faith" 
pledged? With whom was that understanding held ? With 
parti :ular members of that secret Convention in which the 
Constitution was drafted ? Who then were the -parties to 
the " compact" to the " implied faith," the "tacit under- 
standing?" " We, the People of the United States," knew 
nothing of the matter, any farther than appeared in the 
written document itself, that was submitted to the people, 
for adoption. If the People of the southern States (who, 
by the bye, could have known no more of these secret un- 
derstandings than the People of the North did,) adopted 



122 AMERICAN CONSTITUTIONAL LAW. 

the Constitution, trusting in the "implied faith'* and "tacit 
understanding 1 " with individuals of the Convention, then 
they trusted in those individuals, whoever they were, and 
must look to them, and not to the People of the United 
States. 

It would be just as easy to say (and more easy to prove) 
that the People of the North would not have come into the 
Union with any known compromise or guaranty of slavery, 
as it is to say that the People of the South would not have 
come into the Union without it. 

If it be said that two or three of the slave States — the 
Carolinas and Georgia — were backward to come into the 
Unio-i because Congress was clothed with powrr to abolish 
that foreign slave-trade, the abolition of which was then 
thought to be equivalent to the abolition of slavery — the fact 
that they nevertheless did come into the Union, shows that 
they did it with their eyes open, and after full time to delib- 
erate and consider. And we might offset these hesitancies 
of the far South with the fact that Rhode Island accompanied 
her ratification of the Constitution with the proposed Amend- 
ment that the slave-trade should be speedily abolished, and 
that her ratification was expressly made "in confidence that 
the Amendment" would "speedily become a part of the 
Constitution." 

And, so far as the States, or the People of the States are 
concerned, who could have been thepartiesto the "compact" 
and "the compromise" about slavery ? All the States were 
slaveholding Slates, then, but noneol them expected to con- 
tinue so. But for the unexpected culture of cotton, and the 
invention of Whitney's cotton gin, it is commonly thought 
that slavery would have run out, in the course of that gene- 
ration, or at any rate, could not have long survived the abo- 
lition of the slave-trade. 

So far from its beinof true that the southern States would 
not have ratified the Constitution if they had thought the 
Congress would have abolished slavery, they did ratify the 
Constitution believing that the anticipated abolition of the 
slave-trade by Congress zoould be (at it was intended to be) 
the virtual aboli.ion of slavery throughout the States. This 
assertion is not destitute of proof. 

TheFederal Convention was held in 17S7, and in the same 
year, Judge Wilson, one of the members of that Convention, 
declared in the Pennsylvania Convention for its ratification, 
that the Constitution laid a foundation for " banishing sla- 
very out of the country." And he added, " in the lapse 
of a few years, and CONGRESS will have power to exter- 



CHAP. III. — SPIRIT OF THE CONSTITUTION. 123 

minate slavery within our borders." By this public dec- 
laration, Judge Wilson obtained the assent of the Pennsyl- 
vania Quakers to the Constitution. No man contradicted 
his statements, yet the southern ratifications which came 
indeed afierwards, and tardily, were not withheld on that 
account. 

In Virginia the matter was well understood. Gov. Ran- 
dolph said : — 

f* They insist that the abolition of slavery ici!l result from this Constitu- 
tion. I hope that there is no one here, who will advance an objection so 
dishonorable to Virginia. I hope that at the moment they are securing 
the rights of their citizens, an objection will not be started, that thoseun- 
fortunate men now held in bondage, BY THE OPERATION OF THE- 
GENERAL GOVERNMENT, may be made FREE." 

This was said in the Virginia Convention for adopting 
the Federal Constitution. Whether there were any in that 
Convention, who dishonored Virginia by objecting to the 
acknowledged power of the Federal Government over sla- 
very, we are not informed. If there were, their views did 
not prevail. The Constitution was adopted. Similar state- 
ments are said to have been made in the Conventions of 
other States. 

And what if it were so, that in the secret Convention that 
drafted the Constitution, there were men who wished to 
shape the instrument in such an ambiguous manner as to 
favor slavery, without saying so, in direct and honest terms? 
And what if it could be proved that this were so, and that 
they succeeded in their designs, so far as the drafting of the 
instrument is concerned? Would the "PEOPLE OF 
THE UNITED STATES," who knew nothing of the 
fraudulent procedure, be bound by the wicked intentions of 
the framers, or of a portion of them, instead of the natural 
import of the language they employed? Would "strict con- 
struction" say so? Oris the "spirit of the Constitution" to 
be accounted identical with the dishonest spirit of such men, 
who, after all, did not ddre to express, in the document, their 
nefarious designs'? Are we to be bound by their secret and 
unrighteous purposes, rather than by the righteous words 
they were oblige! to employ, in order to make their docu- 
ment acceptable to the People?* 

We do not say nor e/en intimate that such were the facts: 
but we do say that if the oft repeated story of an " under- 
standing" in favor of slavery, among the members of the 
Federal Convention, be founded in truth; and if, as is far- 

*See Address to the Liberty Party in the United States, by Alvan Stewart, 
Esq., Chairman of the National Liberty Committee —Liberty Press, June 4, 
1844. 



124 AMERICAN CONSTITUTIONAL LAW. 

ther alleged, the disputed provision of the Constitution con- 
cerning " -persons held to service and labor" was the result of 
that secret "understanding ," and if the very remarkable 
phraseology there employed, (carefully excluding the word 
slave, and by no means describing the condition of a slave,) 
was intended nevertheless, by the writer.?, to apply to fugi- 
tive slaves, then the annals of political chicanery furnish 
nothing more reprehensible and deserving the indignation 
of mankind. Let those see to it, who would make such 
representations of the facts. If there are any who impeach 
the characters of the framersof the Constitution, before the 
world, they are the persons. 

For, according to their statements, what were the facts? 
And what was their conduct? 

With the policy of holding the Convention in secret, we 
have nothing to say. We only ailude to the fact that it was 
so held. The history of the " Secret Proceedings and De- 
bates of the Federal Convention," furnished us by two of 
the members, Messrs. Yates and Lansing, of the State of 
New-York, tells us the story, as does likewise the commu- 
nication of Luther Martin, of Maryland, (another member,) 
to the Legislature of his own State, which, appears in the 
same volume. M The doors, 1 ' says Mr. Martin, "were to be 
shut, and the whole proceedings were to be kept secret, and so 
far did this rule extend, that we were thereby prevented 
from corresponding with gentlemen in the different States, 
upon the subjects under our discussion." 

This was in 1787. The Constitution was adoped by the 
Slates during that year and the year following, and went 
into operation in 1789. Not until thirty-two years after- 
wards — not until the year 1821, do Messrs. Yates and Lan- 
sing lift the veil of secresy from the " proceedings and de- 
bates of the Convention," revealing, by the bye, in addi- 
tion to the strong and apparently unanswered anti-slavery 
speech of Luther Martin of Maryland, very little that 
throws light on the views held in the Convention on that 
subject. Many years afterwards come the celebrated posthu- 
mous papers of Mr. Madison. And are we now to be told, 
that the "spirit of the Constitution" is to be ascertained 
only by the secret, and for the most part, yet unrevealed 
sayings and doings of the Convention of 17S7 — that the 
Constitution must be construed to mean what Messrs. So- 
and-So are rumored to have said in that secret Convention — 
that the "compromises" and "guaranties" of the " compact" 
are to be looked after, in the secret and unknown doings of 
that Convention — NOT in the document thev elaborated, 



CHAP. III. — SPIKIT OF THE CONSTITUTION. 125 

nor yet in the ACTS and INTENTIONS of the People 
who took the instrument at its word, and adopted it, for what 
its words made it ? 

But since the posthumous papers of Mr. Madison have 
been claimed to be in favor of the peculiar institution, the 
guaranty, and the compromise, let us look at a specimen or 
two, and see how they read : 

"Mr. Gerry thought we had nothing to do with the conduct of the States 
as to slaves, but ought to be careful not to give any sanction to it.' ; — 
Madison papers, Vol. III. page 1394. 

"Mr. Madison thought it wrong to introduce in the Constitution the 
idea that there could be property in man."— lb. Vol. HI. pages 1429, and 
1430. 

"Article 1, Section 2. On motion of Mr. Randolph, the word 'servitude* 
was struck out, anil 'service' unanimously inserted — the former beinjj 
thought to express the condition of saves, and the latter the obligation 
of free persons."— lb. Vol. III. page 1569. 

We have the testimony of Mr. Madison, then, to the fact, 
that Mr. Randolph and the entire Convention^ without a 
dissenting voice, determined to frame Article 1, Section 2, 
in such a manner that it SHOULD NOT be understood to 
" express the condition of slaves," but SHOULD be under- 
stood to "express the obligation of FREE PERSONS !" 

The framers of the Constitution either intended a "com- 
promise" or "guaranty" in favorof slavery,or they did not — 
they either intended to secure the return of fugitive slaves, 
or 'hey did not. 

If they did, then they deliberately intended and artfully 
labored 'to DO THE THING without TELLING- THE 
PEOPLE that they had done it — without revealing the fact , 
by the words they employed ! The words slave and slavery 
were, in that case, carefully avoided, and the description 
could not have been commonly understood as applicable to 
the slave. Icwas not, in fact, applicable to the slave — and 
even allowing the fraud were intended, the extreme care to 
avoid the detection of the intention prevented the thi;.g in- 
tended from being - done! But suppose they had succeeded 
in a covert yet cor.rect description of the condition of the 
slave — would the PEOPLE be bound by the intentions of 
the persons they employed to draft the instrument, or by 
THEIR OWN? 

To put the strongest possible case and give the slave 
power the benefit of the worst possible supposition that can 
be made, we will suppose that the people themselves, dr a 
majority of them, in looking upon, and adopting the Con- 
stitution as a whole, deliberately intended the absurdity and 
impossibility of securing their own liberties and yet putting 
their heels on the necks of their enslaved brothers! A 



126 AMERICAN CONSTITUTIONAL LAW. 

more diabolical act could i;ot well be described, to be sure, 
but suppose it were even so, what then? It still remains 
true that they intended to secure their own liberties, and that 
in order to do so, they intended to put such words and 
phrases into the instrument as would answer that purpose. 
It seems too, from an examination of tr;e instrument that 
they had some correct notion of the proper language to be 
used. Well — they made use of that language — but with a 
latent *• understanding" that the benefits of it should apply 
only to the " free white" inhabitants, and not to the enslaved! 
But that distinction they were either afraid or ashamed to 
write down. The consequence is, the document itself does 
secure the rights of the lohole population, whenever it ia 
properly applied. The question arises whether the " spirit" 
(along with the letter) of the document is the same as the 
"spirit" of those who adopted it ? And whether the present 
generation may not and should not use the document accord- 
ing to itself, and not according to them? Had they used 
the Bible itself (as they might efTe:tually have used much 
of it) for the same purpose — would the " spirit" of the 
Bible and their spirit be one and the same thing ? 

Suppose six brothers should have an "understanding" 
with each other, and in writing an instrument for the 
government of the whole family of twelve brothers, should 
write it so that the instrument would appear very fair in the 
eyes of all who should look upon it, and that by a fair con* 
struction, it would secure the equal rights of the whole. 
Yet, by their "understanding" of the matter, some circum- 
locutions and ambiguities introduced for that object, into the 
paper, are intended to be used to deprive the other six of 
their rights. The question is whether an honest judge and 
jury may not use the document itself, fairly construed to 
secure for the lohole family their rights, or whether they 
must needs be governed, in their decision, by the fraudulent 
intentions of the six, and so help carry them out, in their 
verdict and judgment ! 

'Twere needless to trace out and expose, in detail, all 
the puerilities that have been uttered against the abolition 
of slavery, by Congress, in the District of Columbia. The 
only pertinent question is, by what right, authority or war- 
rant, Congress has enacted slavery, there. 

What absurdity can exceed that of saying that the wishes 
or the laws of Virginia and Maryland must govern the le- 
gislation of Congress for the District? That there was an 
"implied faith" to that effect in the cession of the ten miles 
square! The acts of cession tell their own story. And so 



CHAP. IV. THE STATE CONSTITUTIONS. 127 

does the clause of the Constitution authorizing the accept- 
ance by Congress. With any such reservation, Congress 
had no constitutional authority to accept it, nor could its 
possession have answered the well known objects of the 
Constitution in providing for such a District. It had been 
found that Congress could not act independently while sit- 
ting in a location controlled by State policy, and State au- 
thority. Virginia and Maryland knew all this, and they 
understood and ratified the Constitution, before the cession 
was made. And to say that Congress must not abolish 
slavery in the District, without a vote from the inhabitants, 
is to establish a priuciple which would wholly abrogate the 
legislative authority }f Congress over theDistrict, and leave 
it in a state of anarchy, without any civil government, at 
all ! The power of Congress to abolish slavery in the Dis-» 
trict, has never, until within a few years, been denied, and 
has been conceded by the most eminent statesmen, of the 
South — by those now loudest against the exercise of the 
power. 



CHAPTER IV. 

OF THE LEGALITY OF SLAVERY, BY THE CON- 
STITUTIONS OF THE SLAVE STATES. 

State of the Question — Abolition of Slavery in Massachusetts — Slavery 
Unconstitutional in Delaware— Is Slavery Constitutional in Maryland ?— 
Other States — North Carolina, South Carolina, Louisiana, Kentucky, 
Tennessee, Mississippi — Conclusion. 

If slavery be inconsistent with the Constitution of the 
United States, it is natural to inquire whether it be consist- 
ent with the Constitutions of the States wherein it exists. 

And this question resolves itself into another, namely, 
whether the spirit and letter of those Constitutions agree, 
in the main, with the Constitution of the United States, or 
in other words, whether they embody " a republican form 
of government" which " the United States" have guarantied 
" to every State in this Union" — whether, like the States 
formed out of the North Western Territory, they are " re- 
publican States" and can "have no slavery?" 

To answer this question in the affirmative, is to say that 
slavery in these States is illegal, because contrary to the 
State Constitutions. To answer it in the negative, is to say 
that Congress is bound to interfere, under the fourth section 
of the fourth article of the Federal Constitution, and provide 
for them republican forms or constitutions of government. 



128 AMERICAN CONSTITUTIONAL LAW. ' 

Abolition of Slavery in Massachusetts. 

In one of the States where slaves were formerly held, a 
judicial decision, without any statute enacted by the legisla- 
ture, declared that slavery was illegal. 

'•'In Massachusetts, it was judicially declared, soon after the Revolu- 
tion, that slavery was virtually abolished by the Constitution, and that 
the issue of a female slave, though born prior to the Constitution, was 
born free." — Kent's Commentary, page 252. 

In giving the opinion of the Court in the case of the Com- 
monwealth versus Thomas Aves, in 1833, Chief Justice 
Shaw said: — 

" How, or by what act, particularly, slavery was abolished in Massa- 
chusetts, whether cy the adoption of the opinion in Somerset's case, as a 
declaration anil modification of the Common Law, or by the Declaration 
of Independence, or by the Constitution of 1780,* it is not now very easy to 
determ ne, and it. is rather a matter of curiosity than utility, it being 
agreed on all hands, that if not abolished before, it was so, by the decla- 
ration of rights. * * * * 

" Without pursuing this inquiry farther, it is sufficient for the purposes 
of the case before us, that by the Constitution adopted in 1780, slavery 
was abolished in Massachusetts, upon »he ground that it is contrary to 
natural right and the plain principles of justice. The terms of the first 
article of the declaration of rights are plain and explicit. » All men are 
born free and equal, and have certain natural, essential, and unalienable 
rights, which are the right of enjoying and defending their lives and 
liberties, that of acquiring, possessing, and protecting property.' It 
would be difficult to select words more precisely adapted to the abolition 
of slavery."— Pickerings Reports, page 209-10. 

Slavery Unconstitutional in Delaware. 

Is Massachusetts, the only State in the Union that has a 
"^bill of rights," and a "Constitution" that recognizes the 
great central truth of republicanism that "all men are born 
free and equal?" 

What say " our brethren of the South ?" Do they come 
in for no share of the great national birthright of freedom? 
Let us take a peep into their Constitutions, and sec. 

The Preamble of the Constitution of Delaware, we have 
quoted, in another connection. Very manifestly there can 
be no constitutional slavery in Delaware, and nothing is 
wanting but a judicial decision, like that of Massachusetts, 
to abolish slavery in that State. " All men" are declared 
by the organic law of Delaware, to have, by nature, the 
rights of worshipping and serving their Creator according to 
the dictates of their consciences, of enjoying and defending 
life and liberty, of acquiring and protecting reputation and 
property." No statute could be enacted more authoritative 
or explicit than this. The Constitution of Delaware provides 

•That is, the Constitution of the State. 



CHAP. IV. — THE STATE CONSTITUTIONS. 129 

for freedom of speech and of the press and religious free- 
dom. It says: — 

''The people shall be secure in their persons, houses, papers, and 
possession?!, from unreasonable searches and seizures. 

" No attainder shall work corruption of hood, nor, except during the 
life of the offender, forfeiture of estate." 

In the entire document we meet with no discrimination 
on account of color, and no mention of slavery or slaves. 

If slavery be not illegal in Delaware where is it illegal? 
This Constitution was adopted in 1792, and (we believe) 
after the judicial abolition of slavery in Massachusetts, so 
that the legal effect of such Constitutions could not have 
been unknown or forgotten. 

Is Slavery Constitutional in Maryland ? 

"We, the delegates of Maryland," &f\, &c, declare, " That all govern- 
ment of right originates from THE PEOPLE, is founded incompact 
only, and instituted solely for ihe GOOD OF THE WHOLE." 

"That the INHABITANTS of Maryland are entitled to the COM- 
MON LAW OF ENGLAND." 

['Entitled to emancipation from slavery' could scarcely 
have been more explicit.] 

And again, the phrase " the inhabitants of Maryland" is 
repeated. Further, it is declared — 

" That the right, in the PEOPLE, to participate in the legislature, is 
the best security of liberty and the foundation of all free govern- 
ment."* 

" That every man has a right to petition the legislature, for the re- 
dress of grievances, in a peaceable and orderly manner." 

"That paupers ought not to be assessed for the support of government, 
but every other person in the State ought to contribute his proportion of 
public taxes," &c. 

" That monopolies are odious, contrary to the spirit of a free govern- 
ment, and ought not to be suffered." 

" That no title of nobility, or hereditary honors ought to be granted 
in this State." 

[No exception is here made for the "hereditary honors" 
of white persons or of slaveholders.] 

The above are found m the Declaration of Rights, in the 
Constitution which was framed in August, 1776. 

Other States. 

North Carolina.—" Declaration of Rights."—" That all political 
power is vested in, and derived from the people only.'' " That no man, 
or set of men are entitled to exclusive or separate emoluments or privi- 
leges from the community, but in consideration of public services."— 
" That the freedom of the press is one of the great bulwarks of liberty, 
and theiefore ought never to be restrained." " That all men have a 
natural and unalienable right to worship Almighty God, according to 

* Another definition of " a republican form of government." 

9 



ISO AMERICAN CONSTITUTIONAL LAW. 

the dictates of their own consciences."* " That a frequent recurrence 
to fundamental principles is absolutely necessary to preserve the bless- 
ings of liberty." ■' That perpetuities and monopolies are contrary to 
the genius of a free State,f and OUGHT NOT TO BE ALLOWED." 

In the Constitution of North Carolina, (as in 'those of 
Delaware and Maryland,) we find no establishment of slave- 
ry, and no authority vested in the legislature to establish it. 
On the contrary, the Constitution (Article 44) explicitly 
says — 

" That the Declaration of Rights is hereby declared to be a part of the 
Constitution of this State, and ought never to be violated on any pretence 
whatever." 

How then, can there be any constitutional validity in the 
remarkably rigid slave statutes of North Carolina, by which 
the rights of conscience are violated, " fundamental princi- 
ples" outraged, and monopolies established ? 

South Carolina. — Even in this State, the Constitution 
provides for " the free exercise and enjoyment of religious 
profession and worship" and " trial by jury," " The liberty 
of the press, shall be forever inviolably preserved." Other 
parts of the document, however, are in bad keeping with 
these provisions, which, if carried out, would not fail to 
abolish slavery* Which part of the Constitution is to be 
considered indicative of its "spirit," and which must be set 
aside as anomalous, we will not now stop to inquire. 

Louisiana. — The Preamble to the Constitution declares 
that—" We, the representatives of the people," &c; " in or- 
der to secure to all the citizens thereof, the enjoyment of 
all the rights of life, liberty, and property, do ordain and 
establish the following Constitution or form of government, 
and do mutually agree with each other, to form ourselves 
into a freet AND independent State," &c, &c. The Con- 
stitution says — 

" Printing presses shall be free to every person who undertakes to ex- 
amine the proceedings of the legislature, or any branch of the govern- 
ment, and no law shall ever be made to restrain the right thereof. The 
free communication of thoughts and opinions is one of the INVIOLA- 
BLE RIGHTS OF MAN, and every citizen may freely speak, write, and 
print on any subject, being responsible for the abuse of that liberty.'* 
—Article 21. 

" All laws contrary to this Constitution shall be null and void." — 
Article 25. 

The gentlemen of the legal profession will have little dif- 
ficulty in/letermining whether the following statute of Lou- 
isiana, a part of its slave code, is constitutionally "null and 
void." 

* And yet, in North Carolina, the laws forbid the slaves to be taught to read 
the Bible, or to be in possession of one ! " In North Carolina the law prohibits 
a free colored man, whatever may be his attainments or ecclesiastical author* 
ity, to preach the Gospel."— Jay's Inquiry, page 33. 

t Implying that North Carolina was to be a " free State." 

JBut is Louisiana a. free State ? 



CHAP. IV. — THE STATE CONSTITUTIONS. 131 

I 

" If any person shall use any language from the bar, bench, stage, pul- 
pit, or any other place, or hold any conversation having a tendency to 
promote discontent among free colored people, or insubordination among 
slaves, he may be imprisoned at hard labor, not less than three nor more 
than twenty-one years, or he|may suffer DEATH, at the discretion of the 
Court." 

Kentucky.— "We, the representatives of the PEOPLE of the State 
of Kentucky, in Convention assembled to secure toaWthe citizens thereof 
the enjoyment of the right to life, liberty, and property, and of pur- 
suing happiness, do ordain this Constitution for its government." 

Among other things, the Constitution declares — 

" That all power is inherent in the people, and all free governments are 
founded on their authority, and instituted for their peace, safety and hap- 
piness." 

" That all men have a natural and indefeasible right to worship Almighty 
God, according to the dictates of their own consciences." 

Freedom of speech and of the press are then secured in 
tjie same language as in the Constitution of Louisiana. 

Strange to tell, the same document contains a provision 
that the legislature shall have " no power to pass laws for the 
emancipation of slaves without the consent of their owners, 
or without paying their owners, previous to such emancipa- 
tion, a full equivalent in money for the slaves so emanci- 
pated !" 

It might well be questioned whether the legislature could 
enact or whether the Judiciary or Executive could enforce or 
execute slave laws without a violation of" the fundamental 
principles of the Constitution of Kentucky ! When a docu- 
ment stultifies itself in this manner, it would puzzle "strict 
construction" to make any thing but contradiction and self- 
subversion out of it. And " the spirit" of such a Constitu- 
tion might be difficult to be ascertained. We will only say 
that if the free features of this Constitution are to stand as 
valid, the pro-slavery features are to be set aside as incon- 
gruous and impracticable. But if these latter are to be held 
valid, then the former must be nugatory, and the Kentucki- 
ans are wholly without the benefits of their declarations and 
provisions in favor of liberty. 

Tennessee.— Declaration of Rights.—" That all power is inherent in 
the PEOPLE, and all free governments are founded on their authority 
and instituted for their peace, safety, and happiness; for the advancement 
of those ends, they have AT ALL TIMES an inalienable and indefeasible 
RIGHT to alter, reform, or ABOLISH the government, in such MAN- 
NER, as they may think proper." 

The " inalienable and indefeasible RIGHT" of "the people" of Ken- 
tucky — (nearly one third of whom are slaves and free " people" of color 
— and a small minority of whom are slaveholders) — to ABOLISH the 
government they live under, "in such MANNERasthey may think proper" 
is pretty strongly stated in this article— and with less of the peace prin- 
ciple in it, than the " incendiary abolitionists" would have been likely 
to have introduced ! — Furthermore it is declared — 

"That all men have a natu; al and indefeasible right to worship Al- 
mighty God according to the dictates of their own conscience." — " That 
the PEOPLE shall be secure in their persons, houses, papers, and posses- 



132 AMERICAN CONSTITUTIONAL LAW. 

sions, from unreasonable searches and seizures ;" — " that no conviction 
shall work corruption of blood, or forfeiture of estate :" — " that the printing 
presses shall be free" &c. (as in the other Constitutions) " that perpetui- 
ties and monopolies arc contrary to the genius of a free State, and ought not 
to be allowed." 

[That is, no "compromise" ought to be made with them !] 
The lawyer would have had a hard task that should un- 
dertake to prove, before a Court of sound and upright con- 
stitutional jurists, the constitutionality of slavery in Tennes- 
see, notwithstanding the aristocratic structure of the State 
government, operating to strengthen the slave power. 

Mississippi. — " We the Representatives of the people inhabiting the 
western part of the Mississippi territory," &c. &c, " in order to secure 
to the citizens thereof the rights of life, liberty, and property, do ordain 
and establish the following Constitution and form of government, and do 
mutually agree with each other to form ourselvelves into a free and in- 
dependent State." 

'*' That the general, great, and essential principles of liberty" [not 
slavery] " and free government may be recognized and established, we 
declare," &c. 

The " declaration of rights" then proceeds to affirm — " that 
all political power is inherent in the people," &c, (repeat- 
ing the declaration of Tennessee with its right'to " abolish" 
&c.) also that " every citizen may freely speak, write and 
publish his sentiments, on all subjects," &c. — that " no law 
shall ever be passed to curtail or restrain the liberty of 
speech or of the press" — " that the people shall be secure in 
their persons, &c. from unreasonable seizures" — that "the 
right of trial by jury shall remain inviolate" — that " every 
citizen has a right to bear arms for the defence of himself 
and the State," &c. &c. 

To give these " great and essential principles of liberty," 

all the force of organic law, paramount to statute law, it is 

carefully added, by way of "conclusion" to this Declaration — 

" To guard against transgression of the high powers herein delegated 
we declare that every thing in this article is excepted out of the general' 
powers of government, and shall forever remain inviolate ; and that all 
laws contrary thereto, or to the following provisions, shall be void. 

But the Constitution itself, in utter forgetfulness of these 
"essential principles" provides, that "the general assembly 
shall have no power to pass laws for the emancipation of 
slaves without the consent of their owners, unless ivhere a 
slave shall have rendered the State some essential service, in 
which case the owner shall be paid a full equivalent for the 
slaves so emancipated."* 

A number of curious questions might be started here. 
Does not the declaration of rights. render null and "void" 

* Quert.— Do the Mississippians consider their " slaves better off" in sla- 
very than emancipated ? , 



CHAP. IV. THE STATE CONSTITUTIONS. ' 133 

the above provision of the Constitution ? Or must the lat- 
ter S4and, and make "void" the former? Both can not be 
valid, of course, or if they are, the Constitution itself is 
" null" by equipoise. 

Suppose a judicial decision, under " the great and essen- 
tial principles of liberty" which " shall forever remain in- 
violate" and of which it is declared in the bill of rights that 
" all laws contrary thereto" (not excepting the slave laws) 
" are void" — should declare the slaves in Mississippi eman- 
cipated — the question arises whether the prohibition to the 
"general assembly" forbidding them to emancipate the 
slaves, would apply to the Judicial Court ? 

What endless illustrations have we, of the utter incom- 
patibility of SLAVERY With FREE INSTITUTIONS ! To Suppose 

them both to exist, legally, at the same time — what can ex- 
ceed the absurdity? And how" manifest that a slave State 
can not enjoy a republican government ! 

Conclusion. 

These specimens must suffice. In a former chapter we 
cited some of the pro-slavery and other associated aristocra- 
tic features of the Constitutions of the slave States, in proof 
that they did not exemplify republicanism, nor harmonize 
with " a republican form of government." With all due 
impartiality we have presented the brighter features of some 
of those Constitutions, now. 

Some of those Constitutions, (that of Delaware, at least, 
if not some others,) may fairly be claimed, we think, as sub- 
versive of slavery, though containing features, even then, so 
aristocratic and anti-republican, as to warrant the interfer- 
ence of Congress, under the national "guaranty" of "a re- 
publican form of government to every Slate in this Union." 
And a correction of those abuses and oligarchies, in the 
slave States, would carry with it the abolition of slavery. 

In some of the slave States, then, slavery is illegal, be- 
cause contrary to the Constitutions of the States where it 
exists. In others of them, the Constitutions are so palpably 
anti-republican as to call loudly for the constitutional guar- 
anty of the United States. If in others of them, the Con- 
stitutions are difficult of exposition, Congress has a right to 
demand distinctness and decision.* In the cases where the 

* In the correspondence of the Oberlin Anti-Slavery Committee with Hon. 
Wm. Andrews, (vide Friend of Man, July 31, 1839,) we meet with the following 
paragraph : 

" Of all the Constitutions ever formed by the people of the Union and of the 
States, not one fails to recognise the paramount authority and supremacy of God. 
To quote the words of every Constitution, would be laborious to us and tire- 



134 AMERICAN CONSTITUTIONAL LAW. 

Constitution is for liberty and the statute for slavery, the. 
Congress has a right to demand that they shall harmonize. 
The "spirit of the Constitution" was not in quest of shells, 
of shadows, or shams, when it demanded for every State in 
this Union a republican form of government — nor will a. free 
people, deserving the appellation, be satisfied with the mere 
name, instead of the thing signified by it. A government 
may be anti-slavery without being republican. But it can 
not be republican without being anti-slavery. 



CHAPTER V. 
THE DECLARATION OF INDEPENDENCE, 

The charter of liberty, but never claimed as a "guaranty of slavery" 
— The Declaration, a part of American Constitutional Law — Proofs of 
this position — A Constitution of Government defined — The Constitution 
of 1776, still unrepealed — Historical facts — The alternative — The Decla- 
ration of Independence, if the act of separate States,equally fatal to legal 
slavery — The Declaration, never repudiated by the slave States, is still 
binding upon them. 

In disposing of the claims of slavery, under the Consti- 
tution of 1787-9 — we have disposed of all its pretensions to 
a " compact," "compromise" or "guaranty," on the part of 
the General Government, or of the people of the United 
States. Back of that date, and beyond the framing of that 
instrument, it never adventures to travel. It never alludes 
to the " compact" made in the "Articles of Confederation" 
in 1778, nor to the earlier " compact" of the Declaration of 
Independence in 1776. It has an instinctive dread of those 
" compacts." 

Not so with the claims of liberty and emancipation. 
They are of older date, and gain in freshness and vigor the 
farther they are traced. 

The Declaration, a part of Constitutional Law. 

When we closed our direct examination of the Federal 
Constitution of 1787-9, and of the Constitutions of the sev- 
eral States, we did not close our examination of American 
Constitutional Law.* This statement will doubtless sur- 

some to our readers, but for the benefit of those who wish to examine the mat- 
ter, we refer to some of the articles where this recognition can be found. See 
Hogan and Thompson's Edition of the American Constitutions, pages 3, 5, 6, 
13, 21, 25, 27, 48, 49, 68, 75, 95, 113, 126, 154, 159, 182, 203, 220,227, 262, 273, 289, 
294, 318, 327, 355,362." 

* A law volume before us bears the following title page. " Constitotionai. 
Law, comprising the Declaration of Independence, the Articles of Confederation, 
the Constitution of the United States, and the Constitutions of the several 
States composing the Union." Washington, Gales & Seaton, 1820, 



CHAP. V. DECLARATION OF INDEPENDENCE. 135 

prise some, whose idea of a Constitution of civil government 
never goes beyond the piece of paper or parchment they 
have been accustomed to hear called by that technical name. 
The thought never entered their minds that the American 
people could have had a Constitution of Government, before 
the sittings of the Convention of 1787. Still less have they 
ever suspected that any thing besides the document then 
framed can be properly considered as forming a part "of our 
Constitutional Law, at the present time, or that any remains 
of suck law could survive the wreck of that paper, if all the 
authenticated copies of it should be lost or burned, or if, by 
any foreign invasion or domestic disorder, or dismember- 
ment, the present arrangements under it should be thrown 
off of their present track. 

Definition of a Constitution. 

" Constitutional Law" has been defined to be tl the funda- 
mental principles of a government, showing the true intent, 
meaning, and end of its formation. And the effect of these 
declared principles will be to limit all authority under the 
government to their oivn spirit, and make whatever is done 
contrary to them unconstitutional and void."* In strict ac- 
cordance with this, is the definition of our approved lexi- 
cons. A " Constitution" . according to Webster is " the es- 
tablished form of government in a State, kingdom, or coun- 
try ; a system of fundamental rules, pririciples, and ordi- 
nances, for the government of a State or nation." 

The Constitution of 1776, still Unrepealed. 

Were the United States without any thing of this kind 
until 1787-9 ? And is there no manner of connection be- 
tween the present Federal Constitution and the Constitution- 
al Law that preceded it ? 

We have had a National Government ever since the 4th 
of July, 1776, a National Government that had its "Conti- 
nental Congress" — its " Continental army" — its " Conti- 
nental money" too, as some may remember. This National 
Government carried on a National war, appointed National 
officers to transact public affairs — entered into foreign ne- 
gotiations—procured recognitions from foreign courts of its 
legitimate authority, and of the independence of the Nation 
it governed — made treaties, concluded a peace. 

And was this National Government without any u funda- 

* " Sevtnty-six—a, writer in the Emancipator of Jan. 4, 1838. 



136 AMERICAN CONSTITUTIONAL LAW. 

mental rules and principle"* all this time ? Was it even 
without a written, a documentary, an authenticated, a Na- 
tional expression of those "fundamental rules and princi- 
ples ?" What was the " Declaration of Independence" with 
its self-evident truths, and its declared object of instituting 
a new government, founded on those principles, but such an 
expression ? And what was that expression but the promul- 
gation of a Constitution ? The minute details of the gov- 
ernment, to be sure, were not then fixed upon. That was 
left for the " Articles of Confederation," two years after- 
wards, and these were altered into the Federal Constitution 
about ten years after that time, other "Amendments" have 
been since added, and other changes may hereafter take 
place. 

In all this, has the " Declaration of Independence" been 
repealed'? If it has, then " the thirteen United States of 
America" have ceased to be such, and have sunk back into 
British colonies again. If it has not, then its essential and 
distinctive character, as the fundamental basis and ground 
work of American Constitutional Law, remains unchanged, 
and in full force. 

We are the same " United States of America" that we 
declared ourselves "of right" to be, in Julv, 1776. We 
claimed the right, on the ground of the self-evident truths 
we then recognized as the basis of the new government. If 
we have renounced those self-evident truths, or have ceased 
to place them at the basis of our National Government, then 
we have renounced the right to have any National Govern- 
ment at all. 

Historical Facts. 

A vague notion prevails that, in the first place, there were 
thirteen separate, disunited States, wholly independent of 
each other, and that this condition of things continued until 
the adoption of the Federal Constitution of 1787-9, when, 
for the first time, they became " United States," and under 
the authority of a General Government. But this theory is 
at war with incontrovertible historical facts, and stubborn 
chronological dates. Before the Declaration of Indepen- 
dence, July 4, 1776, there were no independent sovereign 
States; and the Declaration which asserted their indepen- 
dence, asserted likewise their union, as " United States of 

* A Constitution may either be written or unwritten, or (like the British 
Constitution) partly written and partly unwritten. Ccmmon Law is the soul 
of the British Constitution. " Unwritten or Common Law — a rule of action 
which derives its authority from long usage, or established custom." — Webster. 



CHAP. V. — DECLARATION OF INDEPENDENCE. 137 

America," affirming, moreover the object of their assumed 
indepence to be the institution of a new government (not 
governments) upon the basis of the self-evident principles 
then recognized.* There has been no State sovereignty 
that has not been connexed with the zmity of the States, and 
modified by it. The " Articles of Confederation," that were 
several years under discussion before their adoption, were 
shaped nearer in accordance with' the notion of separate 
Stale sovereignty than either the Declaration of Indepen- 
dence or the Federal Constitution, yet even this document, 
described, to some extent, a Genera^Government, but be- 
ing found defective, in this very particular, the Convention 
of 1787 was called, and the theory of the declaration of In- 
dependence was, in the new Constitution, more completely 
restored. 

For a more minute statement of these facts, the reader is 
referred to an oration delivered at Newburyport, by John 
Quincy Adams, July 4, 1837. A few extracts from that 
oration will not only confirm what we have said, but help to 
indicate the important ends which those facts should be 
made to subserve. 

" They had been British colonies — distinct and subordinate portions of 
one great community. In the struggle against one common oppressor, 
by a moral centripetal impulse, they had spontaneously coalesced into 
ONE PEOPLE. They declare themselves such, in express terms, by 
this paper. The members of the Congress who signed their names to 
the Declaration, style themselves the Representatives, not of the separate 
colonies, but of the United States of America, in Congress assem- 
bled. No one colony is named in Ihe Declaration, nor is there anything 
on its face, indicating from which of the colonies, any one of the signers 
were delegated. They proclaim the separation of one people from an- 
other. They affirm the right of the People to institute, alter, and abol- 
ish their government; and their final language is — ' We do, in the name, 
and by the authority of the good People of these colonies, solemnly pub- 
lish and declare that these United Colonies are, and of right ought to be, 
Free and Independent States.' The Declaration was not, that each 
of the States was separately free and independent, but that such was their 
united condition. And so essential was their Union, both in principle 
and in fact, to their freedom and independence that, had one of the colo- 
nies seceded from the rest, and undertaken to declare herself free and in- 
dependent, she could have maintained neither her independence nor her 
freedom, 

''And, this one People did notify the world of mankind that they 
thereby die assume, 'among the powers of the earth' the separate 
and equal station to which the laws of nature and of nature's God entitled 
them."— Pages 11, 12. 

" The idea of separate State sovereignty . had evidently no part in the 
composition of this paper." — lb. page 33. 

* None of the separate States had declared independence before this national 
declaration. The Constitutions of all the States are of later date, except that 
of New Jersey, which bears date July 2, 1776, but in this document no mention 
is made of independent State sovereignty. On the other hand, the term colony 
was used, both in the Constitution and in commissions, writs, &c, &c, until 
Sept. 1777, when an act of legislature directed the word State to be substituted 
for colony. 



138 AMERICAN CONSTITUTIONAL LAW. 

And "the idea" of a "compact," " compromise," and 
41 guaranty," in support of interminable despotism, for the 
purpose of bringing into the Union the States that were al- 
ready in the Union, and had been in it for about a dozen 
years, when the Constitution of 1787-9 came into being, is 
" an idea which evidently formed no part in the composition 
of (that) paper." 

We have heard Mr. Adams' testimony that the Declara- 
tion of Independence established a National Government for 
" the United States of America." Let us now hear his tes- 
timony concerning the character of the government then and 
tht^s established. 

" The elements and principles for the formation of a new government, 
were all contained in the Declaration of Independence, but the adjustment 
of them to the condition of the parties to the compact, was a work of 
time, of reflection, of experience, of calm deliberation, of moral and in- 
tellectual exertion." &c— Page 28. 

In other words, the Declaration of Independence compri- 
ses and embodies the fundamental " elements and princi- 
ples" of American Constitutional Law. The adoption of 
the " Articles of Confederation," first, and of the " Consti- 
tution" of 1787-9, afterwards, are to be regarded in the 
light of "exertions" for the "adjustment" and proper ap- 
plication of these great principles of Constitutional Law. 
These principles, asserted in the original Declaration of 
1776, when the nation came into existence, continue to con- 
stitute now, (as they always have done, and will continue 
to do) the vital essence, the pith, the marrow, and the sub- 
stance, of our Constitutional Law. The mere outward form, 
the minutely detailed provisions of the subsequently written 
Constitution — these are but the instruments, of which those 
principles are the living spirit and substance. To accept of 
the former as a substitute for the latter, and to their exclu- 
sion, would be to accept of the shell, and throw the kernel 
away — to idolize the instrument and spurn the blessings it 
was intended to procure for us. Let us hear from Mr. 
Adams again. 

"The Declaration of Independence first organized the social compact 
on the foundation of the Redeemer's mission on earth. It laid the corner 
stone of human government on the first principles of Christianity. "—Page 6. 

How could it do this, if its authority were not to be recog- 
nized, as comprising fundamental Constitutional Law ? 
Speaking still of the Declaration, Mr. Adams says, again : 

u For the first time since the creation of the world, the act which con- 
stituted a great people, laid the foundation of their govern- 
ment upon the unalterable and eternal principles of human rights." 



CHAP. V. — DECLARATION OF INDEPENDENCE. 139 

That which "constitutes" and "lays the foundation of 

government" — must be called a Constitution of government, 

so long as words are used to signify things and convey 

ideas.* One extract more must suffice. 

"The Declaration itself did not even announce the States as sovereign, 
but as united, free, and independent, as having power to do all acts and 
things which independent States may of right do. It acknowledged, there- 
fore, a rule of right, paramount to the power of independent States, 
and virtually disclaiming all power to do wrong. f This was a novelty 
in the moral philosophy of nations, and it is the essential point of differ- 
ence between the system of government announced in the Declaration 
of Independence, and those systems which had until then prevailed among 
men.f A moral Ruler of the Universe, the Governor and Controller of all 
human power, is the only unlimited Sovereign acknowledged by the De- 
claration of Independence, and it claims for the United States of Amejrica/ 
when assuming their equal station among the nations of the earth, only 
the power to do all that may be done of right."' — Page 26. 

How much of a "compact," "compromise," toleration, or 
"guaranty" in favor of slavery — the acknowledged "sum 
of all villanies" — may be made and entered into, " of right," 
we need not stop to inquire. No person of sane mind and 
sound morals could mistake so plain and palpable a point. 
Nor will any one worth arguing with, or answering, pretend 
that there can be constitutional or legal slavery in any State, 
ProvinceJDistrict, or Territory, where our American " De- 
claration" of self-evident truths, and of inalienable human 
rights is to be regarded as holding the authority of Consti- 
tutional Law. 

The courts of Massachusetts have settled that question, 
long ago; and the same Declaration of self-evident truths 
that makes slavery illegal and unconstitutional in Massa- 
chusetts, makes it illegal and unconstitutional in the District 
of Columbia, and in Georgia, and throughout all the "Uni- 
ted States of America" — by whom that Declaration was 
made. 

In further confirmation of our doctrine of the supreme and 
paramount authority of the Declaration of Independence 
over all our other Constitutions and laws, we have another 
high authority to cite. 

* Whether Mr. Adams would agree with us in calling it a Constitution, we can 
not say. But we insist that he has stated the fact correctly, and that the ex- 
istence of such a fact is equivalent to the existence of a constitution of civil 
government. If our premises are attested by those who dissent from our con- 
clusions, the proof of those premises is so much the stronger ; and of our con- 
clusions, our readers will judge for themselves. 

f Mr. Adams had previously noticed and repudiated the doctrine of British 
lawyers that " sovereignty is identical with unlimited and illimitable power" 
u the principle, the resistance to which was the vital spark of the American 
revolutionary cause." 

} In this sentence, you may substitute the words Constitution and Constitutions 
in the place of system and systems, without changing the meaning ; that is, if 
Noah Webster knew the meaning of the words. See his Dictionary, as before 
quoted. 



140 AMERICAN CONSTITUTIONAL LAW. 

In 1820, the Hon. John C. Spencer said in the New York Legislature— 
" I contend that the first act of our nation (the Declaration of Indepen- 
dence,) being a solemn recognition of the liberty and equality of all men, 
and that the rights of liberty and happiness are inalienable — was the 
corner stone of our confederacy — and is above all Constitutions, and all 
Laws." 

The Alternative. — The Declaration of Independence, 
if the act of separate states, equally fatal to legal 

SLAVERY. 

So far as the illegality of slavery in the United States is 
concerned, it will not materially change the result, if we 
take, by way of supposition and as a basis of argument, the 
theory concerning State sovereignty and the Federal Govern- 
ment, the most opposite to the one that has just been main- 
tained. 

We will suppose then that the Declaration of Indepen- 
dence had been the declaration of separate, disunited States; 
each State acting by and for itself alone. To make the case 
as strong as possible, we will suppose that on or about the 
4th of July, 1776, there had been no "Continental Con- 
gress," but that each separate colony in its separate Con- 
gress assembled, had promulgated its Declaration of Inde- 
pendence, of self-evident truths, of inalienable human rights, 
and of separation from Great Britain, for the object of es- 
tablishing governments based on those fundamental princi- 
ples or truths, and for the security of those rights. 

In that case we should have had, (in these thirteen sepa- 
rate Declarations of Independence, of self-evident truths, of 
human rights, and of the establishment of new governments 
on the basis of those truths and rights,) thirteen distinct con- 
stitutions of government, of the same character with the Con- 
stitution of Massachusetts, which abolished slavery in that 
State. Such being the fact, the Federal Convention of 1787 
could have found no legal slavery in existence to form a 
"compact" or " compromise" about — to " guaranty" or to 
tolerate. 

And even if we should not insist upon the technicality of 
a " Constitution" or of " Constitutional Law," (either State 
or National,) in this matter — the same result will not be vi- 
tally changed. It will still be true that there is no legal 
slavery in any one of the thirteen original States, and con- 
sequently none in the new States growing out of them, or 
founded by them. 

Whether the act of a State be called a Constitution, or a 
statute, an ordinance or a declaration, it nevertheless remains 
an act of the State, and carries with it the autlioriiij and 
poiver of the State. And since no one disputes that on the 
4th of July, 1776, the Declaration of Independence, sofami- 



CHAP. V. — DECLARATION OF INDEPENDENCE. 141 

liar to us all, was actually made by the thirteen States, it 
follows that by the power of that act, SLAVERY WAS 
ABOLISHED in each and evesy one of those States, and 
has. been illegal ever since, because slaves, once emancipa- 
ted, can not be re-enslaved by any subsequent act. No one 
supposes that Massachusetts, Connecticut, or New- York, 
could now legally reduce again to slavery the persons or the 
posterity of those whom they have once emancipated. And 
the more strongly the slave States insist that the Declara- 
tion of Independence mustbe considered the act of the sepa- 
rate sovereign States, and not the united 2lC\.o£ the "People" 
of the United States, northern and southern, the more strong- 
ly do they claim the glorious act of the abolition of sla- 
very, in 1776, as their own act ; the less cause will they 
have of complaint, as though it were forced upon them by 
stress of circumstances and by the urgency or the overpow- 
ering predominancy of northern votes ; and at all events, 
and in either case, they may congratulate themselves that 
the act of emancipation was drafted by one of their most 
honored citizens, so that they should not feel themselves ag- 
grieved if "full faith and credit shall be given, in each 
State, to the public acts, records, and judicial proceedings of 
every other State," agreeably to the provision of the Fede- 
ral Constitution, Article 4, Section 1. 

The "Declaration," never repudiated by the slave 
States, is still binding upon thKm. 

Whatever theory we adopt, therefore, it remains true that 
there has been no legal slavery in the United States since 
the 4th of July, 1776. Having been abolished then, there is 
no power, or authority, either State or National, that could 
have established it since. There is nothing, either in the 
Articles of Confederation of 1778, or in the Constitution of 
1787-9, that even professes to have done so, or that recog- 
nizes the legality of any slavery then existing. By no pub- 
lic act did either of the thirteen States that put forth the De- 
claration ot Independence, in 1776, signify to the Nation or 
to the world their renunciation of.that Declaration, or of any 
truth, principle, or doctrine contained in it, or their desire 
to be considered as not being bound by it, up to the time of 
the framing and ratification of the Federal Constitution : no : 
nor have they done so, from that day to this ! Having as- 
sented to the Federal Constitution without any such renun- 
ciation, disclaimer, or repudiation of their emancipation act 
of 1766, it ill becomes any of the States to complain that 
their most honorable act is considered as binding upon them 



142 AMERICAN CONSTITUTIONAL LAW. 

now ; and that they should be expected, (according to the 
express provision of the Constitution of 1787-9, which they 
assisted to frame and having ratified) to maintain " a repub- 
lican jorm of Government " in accordance with the definition 
of such government, which their own Declaration of Inde- 
pendence, of self-evident truths, and of inalienable human 
rights, is well known to contain. The world and the Nation 
have a fair fight to hold them bound by their act of 1776, 
and to consider and treat all the slavery existing since that 
date as existing in violation of law, and of their own most 
solemn declarations and plighted faith. Having adopted the 
Federal Constitution without any repudiation of their former 
declarations and principles, the public sentiment of the civi- 
lized world should require of them that they construe that 
Constitution in accordance with those principles, and abide 
by its provisions, as thus construed. 



CHAPTER VI. 
OF SLAVERY UNDER COLONIAL AUTHORITY. 

ITS LEGALITY QUESTIONED. 

By what authority, or by what right, did the colonists or 
the colonial legislature maintain slavery ? Was that autho- 
rity derived from the Crown, Parliament, Judiciary or usa- 
ges of Great Britain ? If not, from whence was it derived, 
while the colonies recognized their colonial obligations to 
the parent State ? They claimed no right of sovereignty, 
then. 

It will hardly be maintained, except by the school of Mc- 
Duffie, that the right of slaveholding, or of enacting slave 
laws, is derived from the law of nature or of divine revela- 
tion. No lawyer ever thought of going to the "Common Law" 
for a warranty of slavery or of slave laws. 

Undoubtedly the claim, was, and is, that slavery was sanc- 
tioned and legalized by the parent State. A standing apo- 
logy for American slavery has been found in the fact that 
English slavers were permitted by the British Government, 
to visit the colonies, with cargoes of slaves. This has even 
been called forcing their slavery upon us, just as though we 
were obliged to buy what the slavers were permitted to offer 
us. The original draft of the Declaration of Independence, 
by Mr. Jefferson, made it one of the grave charges of the 
colonies against the King of Great Britain, and one of the 
proofs that he was a tyrant, and not fit to govern a free peo- 
ple, that he permitted this traffic to be carried on. 



CHAP. VI. — OF COLONIAL SLAVERY. 143 

If there be any force or propriety in complaints of this na- 
ture against the Government of Great Britain, it must be 
because the legality of slavery in the mother country made 
it difficult or impracticable for the colonial authorities to de- 
clare it illegal. 

But slavery in England was abolished in the judicial de- 
cision of Somerset's case by Lord Mansfield in 1772. It 
was abolished on the broad principles of Common Law. The 
decision therefore was, that slavery never had been legal, in 
England ! It was, in fact, a re-affirming of an old decision, 
in the case of Gal way versus Caddee, before Baron Thomp- 
son, at Guildhall, as early as 1699, thirty years previous to 
the counter-opinion of York and Talbot, in 1729.* 

As slavery, therefore, never had been legal in England, how 
could it ever have been legal in the colonies ? The colonists 
brought the Common Law of England to this country with 
them, and their recognition of it, as a rule of judicial pro- 
ceedings, was among their most cherished rights. If slavery 
was illegal in England, because it was contrary to the Com- 
mon Law, how could it be legal in the colonies, where the 
authority of the same Common Law was recognized ? And 
if the English courts could discover and decide its illegality, 
why could not the colonial courts do the sa,me ? And why 
were they not bound to do it, as well as the courts in Eng- 
land ? The Common Law declares that " human laws are 
of no validity if contrary to the law of nature, which is coe- 
val with mankind, and dictated by God himself." If this 
principle was permitted to be recognized, even at the court 
of King's Bench, is it credible that there was any authority 
in colonial legislation too high and too sacred to bow to the 
same principle when enforced by a colonial court ? 

• "Whatever plea of deference to English decisions might 
have availed for the colonies or their courts, up to 1772, the 
memorable decision of that period left them without that ex- 
cuse afterwards.! Chief Justice Shaw, of Massachusetts, 
in his opinion on the case of the Commonwealth vs. Thomas 
Aves, [vide Pickering's Beports, page 209-10, already quo- 
ted,] is inclined to think that the judicial abolition of sla- 

* Vide C. Stuart's life of Granville Sharpe, page 85. 

f It may be pleaded, perhaps, that the delay of Great Britain, until 1807, wholly 
to prohibit the foreign slave-trade, and until very recently to abolish her colo- 
nial slavery, prevented the judicial decision of 1772, abolishing slavery in Eng- 
land, from being held as a precedent, by the colonies. This criminal delay of 
Great Britain we should neither excuse nor imitate, as we should do, were we 
longer, as a nation to permit, in any portion of our empire, a violation of our 
great National " compact " of 1776. But whywas the interference of the Bri- 
tish Parliament needed, in the matter of her colonial slavery, but because the 
colonial courts failed to follow, as they should have done, the precedent of 
the Somerset case? The fact that English soil was kept free from slavery while 
it existed in the West Indies, proves that Virginia soil might have been. 



144 AMERICAN CONSTITUTIONAL LAW. 

very in that State, soon after the Kevolution, mayh&vebeen 
made " by the adoption of the opinion in Somerset's case, as 
a declaration and modification of the Common Law." If an 
American court, might do this after the separation from 
Great Britain, why not before? 

These questions will have been understood as preparatory 
to another, viz: Whether there was any legal slavery in the 
colonies during the four years from Y712 to 1776 ? 

If there was, then the Common Law permitted in the col- 
onies, what the same Common Law would not permit in the 
mother country. If there was not, then there is no legal sla- 
very in the United States of America now, unless the De- 
claration of Independence, and the glorious Revolution have 
introduced it again, or stood sentinel against the Common 
Law, to prevent it from discharging its proper functions ! 
And if this may be believed, what may we refuse to be- 
lieve ? 

But on these points we shall not stop to insist. We leave 
it for the lawyers to decide. Such of them as can find legal- 
ity in slavery any where, may contrive to find it every where, 
for aught we can tell. 

Whoever would discover the legality of slavery must pur- 
sue his inquiriea further back than the Constitution of '87 
— the. Declaration of '76 — or the decision of '72. On the 
coast of Africa, and in the perpetration of deeds which, if 
proved in a Court of Justice, would swing up the perpetra- 
tors, as pirates, to the yard-arm, by the laws of all civilized 
nations, there it is, and to those acts that we must look, if 
any where, for the ground and origin of lawful slavery* 

And as to colonial authority, the question is not so much 
where the colonies could find authority and power enough 
to abolish their own slave laws — *as where they could find 
authority and power enough to enact them ? Such autho- 
rity and power M the English Common Law," (the paramount 
law of the realm,) does not concede to the Monarch and 
Parliament of Great Britain. 

* " Sir William Blackstone examines those causes of slavery 1 ' (crimes, cap- 
tivity and debt, as cited by Paley) (< by the Civil Law, and shows them all to 
rest on unsound foundations, and he insists that a state of slavery is repugnant 
to reason, and the principles of natural law. The Civil Law admitted it to be 
contrary to natural right, though conformable to the usage of nations."— 
Kent's Commentaries, page 247. 

[And since, by Common Law, "human laws are of no validity if contrary to 
the law of nature," the "usage of nations " can not make slavery legal.] 
. " Opinion of Marsh-ill, C. J. in the case of the Antelope, 10 Wheat- 120. He 
is speaking of the slave-trade, but the remark itself shows that it applies to 
slavery. ' That it is contrary to the law of nature will scarcely be denied. — 
That every man has a natural right to the fruit of his own labor, is generally 
admitted, and that no other person can rightfully deprive him of those fruits, 
and appropriate them against his will, seems to be the necessary result of the 
admission.' " — Pickering's Reports, p. 211. Quoted in opinion ofC. J. Shav! t case 
of the Commonwealth vs. Thomas Axes. 



CHAP. VII. NATURE OF GOVERNMENT AND LAW. 145 

Lord Brougham enjoys the highest reputation for legal 

learning. Let us hear him on this point. 

" Tell me not of rights, talk not of the property of the planter in his 
slaves. I deny the right. I acknowledge not the property. The prin- 
ciples, the feelings of our common nature rise in rebellion against it. Be 
the appeal made to the understanding, or to the heart, the sentence is the 
same that rejects it. There is a law above all human enactments, writ- 
ten by the finger of God on the heart of man — and by that law, eternal 
and unchangeable, while men despise fraud and loathe rapine, and abhor 
blood, they shall reject with indignation, the wild and guilty phantasy, 
that man can hold property in man." 

In strict accordance with this opinion of Brougham, was 
the decision of Judge Harwinton of Vermont, who affirmed, 
that before the claimant of a fugitive slave could make his 
claim valid, he *' must produce a bill of sale from the 
Almighty." 



CHAPTER VII. 

NATURE AND FOUNDATION OF GOVERNMENT 

AND LAW. 

Parchments, papers, precedents— Whence their authority ?— Compacts 
—on whom binding? — Government as an ordinance of God — The '< social 
compact" an exploded fiction — A more substantial theory needed— Where 
shall we find it ?— Civil government a science; compared with other 
sciences — Has its foundation in facts — Nature and relations of man — 
Scripture prophecy— First principles immutable— Can not be set aside 
by compacts and parchments — Recognized by Common Law — What t* 
Common Law? — Whence its paramount power? — One universal law — 
Founded on the Divine Will — Constitution of civil government not arbi- 
trary — Absurdities can not become law — Law can not be created by 
man— can only be discovered, obeyed, and applied— Harmony of our 
National documents with these principles — Objections considered. 

Parchments — Papers — Precedents, &c. 

We have been speaking of lata — of government — of con- 
stitutions of government — of things legal and illegal. And, 
in doing this, we have hitherto been chiefly occupied in ex- 
pounding papers, parchments, documents, records of things 
done or agreed to be done, somewhere, and by somebody, 
before the greater part of the present generation were born. 
We have looked into books, cited authors, authorities, v-sages, 
precedents, customs. 

It is high time to ask ourselves whether this is all we 
know or may know, of law, government, constitution (or 
principle) of government — of the legality — illegality — vali- 
dity — or nullity of statutes or enactments claimed to be laws. 

10 



146 AMERICAN CONSTITUTIONAL LAW. 

Does the pith and gist of the matter lie in the paper — the 
parchment? Or lies it in something beyond, or back of the 
parchment, or the paper ? Have we fou::d the thing, when 
we have found the parchment, the paper, or have we found 
only what purports to be a statement, a description of the 
thing itself? 

If there should happen to be a mistake in the paper, — if 
there should be knavery or stupidity, or accidental blunder 
in the printer or penman of the document, have we no re- 
medy but to take it as it is, for better or for worse ? Are 
there no things, to which we can gain access, ourselves, to 
correct the blunders that may have been made, by others? 
If not, who can tell whether or no the printers, the penmen, 
or those who set them at work, had access to any such ve- 
ritable realities, themselves, or whether they spun the whole 
web out of their own brains ? 

Compacts — On whom Binding? 

And whence the binding authority of laws, constitutions, 
and governments ? You prove to me that a certain " com- 
pact" was made some fifty years ago, while I was an infant, 
or before I was born. You authenticate to me the fact. 
Very well. But how does that fact bind me, who had no 
part in the bargain ? If, as is often said, the whole authority 
of civil government is founded in " compact," how can that 
authority be binding on any persons except those by whom 
the compact was made ? Suppose I do not choose to come 
into the " compact," what have its provisions to do vvi'.h me? 
My being born in the country where the "compact" was 
made does not render me a party to the compact. I had a 
right to be born when and where my Creator saw fit, and 
am not beholden to the makers of paper compacts for my 
right to be where Divine Providence has placed me, and to 
be a man, on my own proper account and behoof. My good 
father or grandfather, (peace to their ashes,) may have signed 
the compact, as they had a right to do, if they saw fit. But 
they stood in their own shoes, and I stand in mine — as truly 
a man as either of them, with the same unimpaired powers — 
with the same high responsibilities to my Creator, to my 
country, and to my race, that they had. They had no power 
to make me iess of an independent man, and a voluntary 
hee agent, than they were themselves. And they have 
not done it. 

Thus, at least, men will reason, (and have reasoned,) 
when they wish to throw off the obligations, either of civil 
government in general, or the particular government they 



CHAP- VII. — NATURE OF GOVERNMENT AND LAW. 147 

live under, or any enactments which they think oppressive, 
or which they dislike. And it might be very convenient to 
have something more logical to confute them with, than 
papers and precedents, something more august to overawe 
them than full bottomed wigs, (now grown into disuse) 
something more satisfactory than gibbets, something more 
philosophical and more Christian than powder and ball, 
especially when wielded as substitutes for theright,'mstea& 
of instruments of suppressing the wrong. 

And most manifestly, civil government must have some 
oiher and higher authority than " mere compazt" if we 
would claim for it the reverence due to " an ordinance of 
God." 

* Social Compact" a Fiction, &c. 

The date, moreover, and the locality of that gieat town- 
meeting of the human race, in which it was agreed to emerge 
from " a state of nature" and " enter civil society" with *' a 
part of their rights surrendered for the better protection of 
•the rest" — (as the old legend hath it,) is a matter that the 
paper and parchment records have never yet reached. The 
recent explosion of that wretched fiction of the old writers 
of civic romance, has left a vacuum .in the theory of govern- 
ment, as existing in the literature of the age, which it is high 
time to fill up with substantial truth, if the high obligations 
of government and of law are to retain any hold upon the 
ever progressive, popular mind. 

Who can tell us whether there be any such substantial 
truth to inculcate, unless our conceptions of government, of 
constitution and of law, can run back of mere libraries and 
precedents, of legislative enactments, of legal decisions, of 
conventional agreements, and fasten hold of something of 
which all these are but the exponents, the declarations, the 
expressions ? 

Civil Government, a Science, &c. 

In every other department of human activity and of human 
science, it is expected that the operator and the student 
should be able to fix his grasp upon something in the form of 
fixed realities, besides the mere papers and books that pro- 
fess to give him an account of them. He is expected to exa- 
mine the things for himself, and to use his parchments only 
as means to facilitate this examination. Why should the 
science of government be an exception ? 

The practical mariner, with his chart of the Indian Ocean 
before him, never mistakes his chart for the ocean itself. 



14S AMERICAN CONSTITUTIONAL LAW. 

He explores the ocean, with its rocks, reefs, and islands, by 
the help of his chart, but never gives the credit to his chart 
of being more correct than the ocean, when he finds reefs 
and islands in the latter, that are net laid down in the for- 
mer ! He does not substitute the paper description of the 
thing for the thing itself. Why should the ship of State be 
guided by a petty pedantry that would be derided by the 
rudest sailor before the mast? With eyes to survey the 
great "self evident truths" of political science, why should 
statesmen or jurists, deserving the name, run the common- 
wealth, (committed, with all its vast interests into their 
hands, as pilots) into the midst of the thick breakers and 
rocky reefs, plain insight before them, merely because they 
can not find them marked out distinctly, on their antiquated 
paper charts ? 

What would be thought of the mathematician who should 
identify the sciences of arithmetic, or geometry, or algebra, 
withhis book, his approved and highly authoritative book on 
those subjects ? Who should never speak of " arithmetic" 
with any higher meaning to the word than the book he holds 
in his hands ? But such a village pedagogue, could we 
find one, would well deserve a place beside the grave sena- 
tor, or the learned judge of the Supreme Coart, who has no 
higher meaning to the phrase, " the Constitution of the 
United States" than the written or printed parchment or 
paper, agreed upon, and drawn up by the Convention that 
assembled in 1787 — forgetful that a Constitution of Govern- 
ment, like a theorem in algebra, or a fact in chemistry or 
botany, or zoology, or astronomy, is a palpable, veritable, 
existing fact, whether any books or papers have described 
them correctly, or undertaken to describe them at all. 

And this opens before us another series of questions — 
which the present generation will have to decide upon, and 
in the decision settle the destinies of their country perhaps 
for ages to corned Their decision will not alter the facts 
and principles upon which they are called to decide. But 
it will fix the condition of the Kepublic, by determining its 
adjustment to those unchangeable principles and facts. 

Nature and relations of Man. 

The problem may be stated in some such queries as these 
— Is there, after all, any thing in the social nature of man y 
in the relations of man to man, in the duties growing out of 
those relations, (duties therefore, imposed upon man by the 
Author of his being,) which lay a foundation, (as they create 
a moral necessity) for such a science as that of civil govern- 



CHAP. VII. NATURE OF GOVERNMENT AND LAW. 149 

ment, a science as fixed and determinate, in the nature of 
things, as any of the other demonstrative sciences, based 
upon " self-evident truths :" a science no more to be altered 
by parchments, or conventional arrangements or precedents, 
than the sciences which enable the persons acquainted with 
them to traverse land and ocean by steam — a science which 
written constitutions, enacted statutes, and recorded deci- 
sions, can more or less correctly or incorrectly describe, (or 
perchance contradict,) but can never alter nor change. 

Unless there be such a science of legislation and of law, 
which mankind can be taught, can understand, and can 
apply, then civil government itself becomes a cheat, and 
legislation becomes a farce, and jurisprudence becomes an 
usurpation, which the onward and rapid march of mankind 
must speedily detect, and woe to the conservators of a law 
and a government that shall prove themselves to be such 
contemptible shams, then. 

Scripture Prophecy — Principles Immutable. 

If the period ever arrives — (and the harp of prophecy 
hath hymned it — the plighted word of Jehovah hath spoken 
it) — that the kingdoms of this world shall become the king- 
doms of our Lord and of his Christ — controlled by his 
.righteous laws, wielded for the fulfilment of his benevolent 
purposes of equity, mercy, peace on earth and good will to 
man, that period will be ushered in by a correct knowledge 
and an honest application of those first principles of civil 
government which are as immutable and as moveless as 
the throne of God himself, which recorded precedents can 
no more modify than they can the courses of the stars, 
which conventional compacts can no more eclipse or blot 
out, than they can the sun and the moon, which enacted 
statutes can no more repeal than they can the laws of gra- 
vitation, which judicial decisions can no more cancel or set 
aside, than they can the downward rush of the torrent, or 
the flight of the winged lightnings of heaven. The king- 
doms, or the pretended republics that will not honor these 
principles, identical with the laws of God, shall come to 
naught, those nations shall utterly be wasted. They shall 
be wearied with their own way, and filled with the fruit of 
their own doings. But the meek shall inherit the earth. 
The upright will he guide in his way, and by rightemis- 
ness (a practical regard to the right) shall the nations of 
the saved be exalted. 
t To conceptions of civil government thus spiritual and 
sublime, by what means, by the use of what symbols, shall 



150 AMERICAN CONSTITUTIONAL LAW. 

the present generation of statesmen and jurists be raised ? 
Deep buried under huge folios of precedentsjand of records, 
of technicalities and of conventionalisms, in the fog of ever 
calculating but never calculated expedients and expedien- 
cies, in the slough of never ending bargains and barters, in 
which the needy are sold for a pair of shoes and the fruit of 
righteousness turned into hemlock, — with what parchments, 
with what papers, with what documents, with what records, 
with what enactments, with what decisions — save those of 
the Sacred Scriptures, that they trample under their hoofs, 
shall such a generation of jurists and statesmen be reached? 

Common Law, secret of its power. 

The volumes of the Common Law, doubtless, embodied 
and reechoed as they are in our own Declaration of Inde- 
pendence, and in the Preamble of the Federal Constitu- 
tion, technically so called, come the nearest to the instru- 
mentalities we are seeking, of any thing within our reach. 
Our jurists, (aye, and our statesmen for the most part,) have 
heard of the Common Law, and have learned something of 
its authority and power. And the very soul of the Common 
Law is identical with the fundamental truths we would 
insist upon. 

For what is the Common Law, the highest standard of 
appeal in our civil courts — the Common Law, that corrects 
hoary abuses, reverses judicial decisions, annuls statutes, 
revises charters, repeals parchments, abashes omnipotent 
parliaments with its presence, and annihilates royal prero- 
gatives with a nod — the Common Law, that Luther like, looks 
confederate emperors in the face, and to their most autho- 
ritative mandates answers, calmly, " No !'' The Common 
Law that stepping into the Court of King's Bench, and 
taking up the slave code, avers, solemnly and decisively 
that there is not power nor authority enough in the British 
Government, Kings, Lords, Commons, Judiciary and all, to 
make that iniquitous code, legal ! that says this, and is 
obeyed ! 

From what source is this mighty and resistless power of 
the Common Law derived ? Did King and Parliament .that 
are overawed in its presence, at any time, enact the autho- 
rity they hate, and before which they cower ? When Com- 
mon Law would present its credentials, does it show a 
commission signed by the dignified officials on the bench 
to whom it gives law, and whom it claims as its servants ? 

Or is.it to the book makers, the compilers, the learned 
recorders, the writers, the printers, the publishers, or the 



CHAP. VII. — NATURE OF GOVEENMENT AND LAW. 151 

hawkers, of Common Law maxims, that we must look, for 
the sources of the high authority with which they are 
clothed ? * 

Let us open our eyes to the fact that the Common Law 
is superior, and paramount, and prior to all these — that she 
"teaches as one having authority, and not as the scribes" — 
the mere copyists or commentators of parchments — that she 
speaks in her own name, or rather, in the name of universal, 
essential, uncreated, unalterable law, or in other words, in 
the name of the most high and eternally supreme God. 

Common Law has power, not because it is printed in cer- 
tain antique volumes of sheep-skin, that the librarians pre- 
serve and that the courts reverence, but because it is the 
voice of the Creator, speaking through the human nature he 
has created— r-the voice of human conscience and of common 
sense, uttered and engraven by human suffering and human 
necessity, demanding justice, equity, redress of wrongs, at 
the hands of those who undertake to govern men, and de- 
manding it with an importunity that has forced open the 
ears and subdued the spirits even of unjust judges that fear 
not God, nor regard man. Such in a word (instead of a 
volume) is an epitome of what might be denominated by 
way of title page, the " natural history of the Common Law," 
— a history by no means confined to the Anglo-Saxons, but 
coeval with the history of man's struggles for his rights, 
the world over. Even in China itself, there is a Common 
Law* that the Emperor may not annul — that the Emperor 
must needs obey. 

One Universal Law. 
An expansion and purification of this idea of Common 
Law may introduce to us, the one universal law — the law of 
nature, sometimes termed — under which all nations are 
placed — a law from which civilization and the social state 
does not release men — a law which it is the sole business of 
civil government to ascertain and enforce, in the execution 
of justice, between a man and his neighbor. " The rightful 
power of all legislation," says Thomas Jefferson, "is to de- 
clare and enforce only our natural rights arid duties, and 
take none of them from us. When the laws have declared 
and enforced all this, they have fulfilled their functions." 
This universal law, then, is the only law. Whatever con- 
flicts with this, is to be repudiated (as say likewise the wri- 

* In the parlance of the Canton merchants — " old custom" — founded on com- 
mon notions of equity— which the mandarins or magistrates are'expected to 
see enforced. This Common Law of China goes far to counterbalance and bold 
in check the otherwise unlimited despotism of that empire. 



152 AMERICAN CONSTITUTIONAL LAW. 

ters on Common Law) "not as being lad law, but as heing 
no law !" Hence, nothing subversive of equity deserves 
the name of law, or is to be treated as law, by any of the 
officers, the Judges, or the executors of law. There is, and 
there can be, no valid or binding law, at variance with jus- 
tice or equity, either on earth or in heaven. 

Source of Law, in the Divine Will. 

Power beiongeth unto God. All rightful rule and author- 
ity are from him. By bestowing social and moral existence 
on men, he has, of necessity, imprinted the law of that so- 
cial and mor«l existence upon them. By giving them the 
nature they possess, he has bound them by the law of that 
nature. By establishing the relations they sustain to each 
othei, he has indicated the duties they owe to each other. 
Among these duties is the duty of the COMMUNITY (not 
a select portion of them) to see that the rights of each mem- 
ber of the community are respected, and uninfringed. From 
the plagues of Egypt to the present hour, the universal his- 
tory of the providential government of God, over the nations, 
attests this great truth, that it is the MASSES and not the 
officials merely, of the nations, that God and nature hold re- 
sponsible for the executing of just judgment. Fealty to 
justice, not to parchments is the constant burden of his re- 
quisitions. 

Constitution of Government not Arbitrary. 

If this be a truthful account of civil government, then the 
Constitution of civil government has a fowidation in nature 
— that is to say, in the Divine Will. It is an existing mat* 
ter of fact, as much so as is the constitution of the human 
body. Of" the latter, the physiologists, (Dr. Combe for ex- 
ample) may have given a more or less reliable account, in 
the books they may have written. Of the former, the Con- 
vention of 1787 may have traced more or less correctly the 
outlines, and indicated the appropriate details. In the 
former case, an individual, in the latter case, a convention, 
and afterwards an entire nation, assumed the responsibility 
of the statements. Both are statements and not creations, 
nevertheless. The Federal Convention, and "we the Peo- 
ple of the United States'* could no more make a Constitu- 
tion of civil government, out of a cloth of our own fabric, 
and upon any principles that might suit our own selfishness 
or caprice — a Constitution that should be valid and binding; 
than Dr. Combe and an university of physiologists could 
make, at their own whim or pleasure, a constitution of the 



CHAP. VII. NATURE OF GOVERNMENT AND LAW. 153 

human body, that should be binding upon all the anatomists 
and suriieons of a nation, or on all who should have occa- 
sion to contract their muscles, and move their limbs ! — In 
both cases, it is God who has made the constitutions. All 
that men in either case can do, is to learn, to teach, and to 
use them. 

As much as this, the Common Law says, when it denies 
that human authorities can make wicked and unjust laws, 
that can be binding and valid. As much as this, the Decla* 
ration of Independence, by obvious implication says, when it 
claims for the new Republic the power to " do all acts and 
things which independent States may, of right, do." As 
much as this, the Preamble of the Federal Constitution re- 
cognizes, and the same is supposed in the provision to cor- 
rect its own mistaken statements of ;< justice" by " amend- 
ments" of its provisions. 

Absurdities can not become Law. 
Why should any men stultify themselves, or degrade by 
broad caricature, the claims and prerogatives of that civil 
government they would teach men to respect, by inculcating 
the reverse of this doctrine ? How would they have us re- 
gard a provision of a paper Constitution that incidentally 
(byway of describing a boundary line, for example) should 
bid us locate the river Ohio west of the Missouri, or the 
Rocky Mountains east of the Mississippi ? Would our 
judges and jurors, in all coming time, be obliged thus to 
regard and describe them? Suppose there were a consti- 
tutional "compact" or a legislative enactment, that the three 
angles of every right angled triangle should be " deemed, 
taken, reputed, and adjudged in law to be" equal to seven 
right angles, would the provision be binding ? Could it be 
made "Constitutional Law?" Suppose it were provided 
that all elephants should henceforth be mice, and that men 
should henceforth be things — immortal spirits, chattels per- 
sonal! Could either of those provisions become law? To 
say so, would be to deny the distinctive characteristics of law 
itself; to say that it is not to be denned either by order, by 
fitness, by truthfulness, or by rule : — that it is, in no way, 
distinguishable from waywardness, from falsehood, from 
lawlessness, from caprice ! 

Man may discover, but not create, Law. 

The alchymists of the dark ages supposed it possible to 

obtain by compound, a substance, which they called the 

philosopher's stone, the touch of which should transmute 

whatever it touched into gold ! We smile and wonder at 



154 AMERICAN CONSTITUTIONAL LAW. 

their folly, and we may justly claim that, except in the sci- 
ence of jurisprudence, the world has made some creditable 
progress, since the times of the alchymists. But in the midst 
of the nineteenth century, under the light of the Christian 
Scriptures, in the presence of the Common Law, and almost 
seventy years after the glorious American Declaration of 
self-evident truths, and inalienable human rights, it is still 
held and maintained by grave and learned men, that certain 
pieces of parchment or paper, emanating from certain places, 
and prepared by certain hands, possess the power of lra<ns- 
muting whatever folly or selfishness may have been pleased 
to write upon them into valid and authoritative law ! Have 
power to counteract creative wisdom and goodness, by trans- 
forming an immortal man into a thing! Compared with 
this dream of the jurists of the nineteenth century, the 
dreams of the alchymists of the eleventh century may al- 
most be pronounced philosophical as well as harmless. 

The time, however, can not be far distant, when these 
matters will be better understood — when legislative and 
judicial halls will be occupied in the rational task of learn- 
ing, declaring, and applying to the affairs of men, the great 
principles of eternal, immutable law, rather than in vain at- 
tempts, either to create, or to annul it. To establish a 
manufactory and to commission manufacturers of laws for 
the government of the solar system, laws for the government 
of mineral, vegetable, or animal existences, chemical laws, 
or laws of hydrostatics ; all this might pass for a rational 
amusement (as it seems indeed to have been the amusement 
of philosophers, before Lord Bacon's time) in the compari- 
son with the still current usage of attempting to manufac- 
ture Constitutional Law, the law by which the social re- 
lations of man, in political communities, must be governed ! 
When shall the inductive instead of the constructive and 
hypothetical philosophy be applied to the science of govern- 
ment ! When will men see that they can only discover 
and obey, not construct, the laws of the political world! 
That their paper constitutions can only teach and declare, 
not originate, the fundamental principles of a civil govern- 
ment ! 

To the case in hand. Hitman beings can no more con- 
struct a civil government, with binding authority over hu- 
man beings, yet without the power to " execute judgment 
between a man and his neighbor," than they can construct 
a globe without the quality of roundness, or a cube without 
its six sides. Abortions and absurdities they may multiply 
as th # ey please. " There is no authority but of God," and 



CHAP. VII. — NATURE OF GOTISitNMfiNT AND LAW. 155 

the authorities that be (that truly possess any binding au- 
thority) " are ordained of God." These " are a terror not to 
good works, but to the evil." They are "the ministers of 
God" " attending continually upon this very thing," and on 
no other ground, and in no other character, can they right- 
fully claim to be recognized, or deserve the " tribute" of 
support. [Paul, in Rom. XIII, 1 — 9.] A Constitution of 
civil government, therefore, that tolerates slavery, is an ab- 
surdity that can not exist. 

Our National Documents. 
With these plain principles of common sense, of Common 
Law, and of our common Christianity, the national docu- 
ments of our common country, in the main, happily har- 
monize. Our Declaration of Independence and the Consti- 
tution of 1787-9 taken as members of each other, consider- 
ed as a whole, and construed by its spirit, constitute a credit- 
able statement of Constitutional Law, and even without the 
amendments of which they are susceptible, are amply suffi- 
cient in their provisions, for either the legislative or judi- 
cial abolition of slavery. An oath to support the Constitu- 
tion of the United Slates is an oath to promote "justice" and 
secure "liberty," an oath to adhere to its "self-evident truths" 
and vindicate inalienable human rights. The legislator 
perjures himself who takes this oath and refuses to legis- 
late against slavery. The j udge perj ures himself who takes 
this oath, and does not, when the opportunity offers, proclaim 
deliverance to the captive. 

Objections Considered. 

It has been said by some of the friends of the enslaved* 
that in our political efforts in their behalf, we must not at* 
tempt to wield powers of government not conceded to us by 
those expositors of the Constitution whom the Constitution 
itself provides (to wit,) the Judges of the Supreme Court — 
that we must give to the Constitution the same construction 
they give it, in the active exertions we put put forth. But 
what if theyh&VQ construed it wrong ? Are our consciences 
to be bound by theirs? Or may the judicial department 
dictate beforehand, to the legislative ? May not a member 
of Congress in the discharge of his duty, vote for the aboli- 
tion of slavery, as he understands his lawful powers, and 
throw upon the judges the responsibility of pronouncing the 
legislation unconstitutional, if they can ? And besides, for 
what object do the friends of God and humanity wield their 
political powers, in this grand struggle, but to rescue every 
department of the government, the judicial, as well as the 



156 AMERICAN CONSTITUTIONAL LAW. 

legislative and executive, from the polluting and withering 
touch of the slave power? Are not the People, as truly re- 
sponsible for a sound judiciary as a sound legislature ? Is it 
not quite as essential for the security of their rights ? And 
does not the Constitution recognize in the PEOPLE the 
constitutional guardians even of the judiciary itself — the 
ultimate expositors of the Constitution ? "JUDGES and 
officers shalt thou make thee in all the gates which the Lord 
thy God giveth thee, throughout thy tribes, and they shall 
rule the people with just judgment." If the present judges 
decide wrongfully, we must indeed submit to their decisions 
for the time being, though we must not assist in executing 
their unrighteous decisions, nor lose a moment's time in 
putting things in train for providing better successors in their 
plaae, whenever their seats shall be vacant. 

Tne views of law that have been presented will alarm 
some with the apprehension that they would tend to fluctu- 
ation and change — that conflicting views of justice and equity- 
would beget constant uncertainty and doubt. The very re- 
verse of all this is the truth. The u glorious uncertainty of 
the law" (so convenient to those who subsist on the spoils,) 
has grown into a proverb long ago. Who does not know 
that conflicting constructions of statutes -and parchments, 
decisions versus decisions, precedents arrayed against prece- 
dents, and technicalities against common sense, have made 
law a vast game of hazard, now, and that a few maxims of 
that same Common Law we would exalt, constitute almost 
the only element of stability, of certainty, or of justice, that 
remain. On this point, and as a conclusion of the whole dis- 
cussion, we introduce a further extract from the correspon- 
dence of the Oberlin Anti-Slavery Committee with Hon. 
Wrn. Andrews. 

"It may be said that this rule makes every man his own constitution 
maker and law maker. There might be some force in this, if the law of 
God were some indefinite thing which man's arbitrary will might mould 
into any shape it pleased. But the principles of fundamental morality 
are more clearly and determinately laid down by ethical writers than the 
import of the Constitution of the Onion by the sages of the law. Our 
public men could have all the motives forgiving the divine law an honest 
interpretation which urgelhemto interpret the Constitution honestly. 
Mistakes might be committed which would need to be corrected by the 
courts, or by subsequent legislation; but the general consequences would 
be a gradual improvement in the moral aspect of society. The fountain 
would be healthy and the stream salutary. Law would be venerable in the 
eyes of men, and the sublime words of Hooker would be no rhetorical 
flourish: — 'Of LAW there can be no less acknowledged than that her 
seat is the bosom of God, her voice the harmony of the world : all things 
in heaven and earth do her homage, the VERY LEAST AS FEELING 
HER CARE, AND THE GREATEST AS NOT EXEMPTED FROM 
HER POWER. Both angels and men, and creatures of what condition 
soever, though each in different sort and manner, yet all with uniform 
consent, admiring her, as the mother of their peace and joy.' " 



AUTHORITIES, &c. &c. 

List of Books, Documents, Pamphlets, Speeches, Writings, 

SfC, quoted, cited, or used in the preceding View. 

1. The Scriptures, as a standard of principles and ethics. 

2. Constitutional Law, comprising the Declaration of Independence^ 
the Articles of Confederation, Constitution of the United States, and of 
the several States, &c. Washing-ton; Gales & Seaton, 1820. 

3. The Federalist on the New Constitution, by Hamilton, Madison, and 
Jay, written in the year 1788. 

4. Secret Proceedings and Debates of the Convention assembled atJPhi- 
ladelphia, in 1787, for forming the Constitution of the United States, 
&c. From notes by Robert Yates, Esq. Chief Justice of New York, 
and copied by John Lansing, Jr., late Chancellor of that State, mem- 
bers of that Convention. Albany: Webster & Skinners, 1821. 

5. Kent's Commentaries. 

6. Pickering's Reports. (Opinions of Judge Shaw and Judge Marshall.) 

7. Montesquieu's Spirit of Laws. 

8. Common Law. Hale's History of Common Law. Littleton's Inst. 
Wood's do. Coke's do. Noyes' Maxims. Chancellor Fortescue. 
Prineipia Legis et Equitatis — Jenks, Bracton. [Vide C. Stuart's Life 
of Granville Sharpe.] Hooker, Blackstone, Christian. 

9. C. Stuart's Life of Granville Sharpe. (Opinions of York and Talbot — 
of Baron Thompson and Lord Chief Justice Mansfield.) 

10. Free Remarks, &c, respecting the Exclusion of Slavery from the 
Territories and New States. By a Philadelphian : 1819. 

11. Hon. William Jay. 1. Inquiry, &c. 2. View of the Action of the 
Federal Government in behalf of Slavery. 

12. Letter of Gerrit Smith to Henry Clay. 

13. Theodore D. Weld. 1. Power of Congress over District of Colum- 
bia. 2. Tract on Fugitive Slaves. 

14. John Quincy Adams. 1. Speech in Congress on the War Power of 
the National Government over Slavery. 2. Oration at Newbury port, 
July 4, 1837. 

15. Ellis Gray Loring. Plea before C. J. Shaw, Massachusetts, in the 
case of Commonwealth vs. Thomas Aves. 1836. 

16. Alvan Stewart, Esq. 1. Constitutional Argument, vide Friend of 
Man, Oct. 18, 1837. 2. Address to the Liberty Party— Liberty Press, 
June 4, 1844. 



158 AUTHORITIES. 

17. Hon. Titus Hutchinson, Vermont. Address in Vermont Freeman, 
Dec. 2, 1843. 

18. Constitutional Argument, signed " Seventy -Six," in the Emancipa- 
tor, of Jan. 4, 1838. 

19. Ohio Resolutions. Resolutions of the A. S. Convention in Ohio, 
(attributed to Mr. Chase) Cincinnati Weekly Herald, 1844. Adopted 
also at Buffalo A. S. Convention, Sept. 1843. 

20. Ichabod Codding, in Charter Oak. Copied into American Freeman, 
March 20, 1844. 

21. Proceedings R. I. Anti-Slavery Convention, Feb. 1836. 

22. Full Statement, &c, before the Committee of the Legislature of 
Massachusetts, by Anti-Slavery Committee. Boston, March, 1836. 

23. Anti-Slavery Lecturer, Utica, 1839. 

24. Liberty. Pamphlet, Albany, 1837. 

25. Slave Laws. Stroud's Sketch— Prince's Digest — Acts of Maryland, 
Tennessee, and Louisiana. 

26. Oberlin Anti-Slavery Committee. Correspondence with Hon. Wil- 
liam Andrews. 

27. Writings of Myron Holley. 

28. Eminent Statesmen, Civilians, &c. Washington, Jefferson, Madison, 
Dr. Franklin, Judge Wilson, Gov. Randolph, Wm. Pinckney, John 
Jay, Gov. Pownal, Dr. Rush, Gen. Heath, Judge Story, Chief Justice 
Ellsworth, Judge Marshal], James G. Birney, Mr. Duponceau, Hall's 
Law Journal, Hawk's N. C. Reports, Chief Justice Taylor, Lord Chief 
Justice Holt, Lord Tenterton, John C. Spencer, Lord Brougham, 
Judge Harwinton, &c. &c. Also, among slaveholding and pro-slave- 
ry statesmen, &c. B. Watkins Leigh, J. C. Calhoun, Henry Clay, 
Gov. McDuffie, Mr. Pickens, Mr. Hammond, Prof. Dew, Gen. Harri- 
son, Gov. Marcy, Gov. Everett, Mr. Upshur, Mr. Stevenson. 

29. Observations on the American Revolution, published by Congress* 
in 1779. 

30. The Madison papers. Posthumous writings of James Madison. 
H. E. Smith, Esq. 4th of July Address at West Galway. 

32. Gerrit Smith, Esq. Constitutional Argument. 

33. W. H. Burleigh, Esq. Editor Christian Freeman. 

34. S. P. Chase, Esq.— in Cincinnati Herald. 



TABLE OF CONTENTS. 



INTRODUCTION. Page. 

Sure triumphs of truth — Former Construction of the British Consti- 
tution, by York, Talbot, Blackstone, and Mansfield. New Con- 
struction, involved in the decision of Lord Mansfield, in the 
Somerset case. Revolution in English Jurisprudence. Secret 
of that Revolution. Granville Sharpe. Origin and foundation of 
law, immutable and eternal 3 

CHAPTER I. 

The Question at Issue. 
Its meaning and its magnitude. Impossibility of evasion. Testimo- 
ny of American Statesmen. No middle ground. Illustrative 
politics of the country. State action. Action of the Federal 
Government. The Alternative 7 

CHAPTER II. 

Strict Construction. The Constitution of 1787-9, considered 
on the principle of strict construction. 

SECTION l.—The Claims of Slavery. 
Modern date of the supposed "compromise." Remarkable process 
of proving it. Strict C instruction defined. " Persons held to 
service and labor." Apportionment of " representatives and di- 
rect taxes." " Migration and importation." Suppression of 
insurrection. Protection against domestic violence. Reserved 
rights of the States 18 

SECTION 2.— The Claims of Liberty. 

The Preamble, Union, Justice, Domestic Tranquility, Common De- 
fence, General Welfare, Security of Liberty. Powers of Con- 
gress. Powers over Commerce. A Republican form of Gov- 
ernment, (definitions of a Republic by various authorities.) Se- 
curity of Liberty, " due process of law." Slavery in the Terri- 
tories and Federal District. The Constitution and the District of 
Columbia. Restrictions on State power. Inhibition of "bills 
of attainder," "laws impairing the obligation of contracts," 
"titles of nobility," (aristocracies, feudalism) "making war," 
" troops in t* me of peace." Immunities of citizens in each State. 
The summing up. Shylock and his pound of flesh. Conclusion. 39 

CHAPTER III. 

pirit of the Constitution. The Constitution of 1787-9, con- 
sidered in the light of its spirit, its objects, its purposes, 
ITS principles, its aims. 

SECTION 1.— Preliminaries. 
Spirit of the Constitution defined. Its province and authority, as a 
rule of construction. An obvious but neglected distinction ..... 81 

SECTION 2. 
Spirit of the Constitution, as manifested by the instrument itself— by 
its Preamble — its grant of powers — its construction of the Fede- 
ral Government — its care of personal rights— its provisions hos- 
tile to slavery— its affinity to Common Law. Specimens of Com- 
mon Law. Its power 83 



160 TABLE OF GONTEiNTS. 

SECTION 3. 
Spirit of the Constitution, as attested by History, by Civilians and 
Jurists. Extent of the National power 102 

SECTION 4. 

The Constitution construed. The "Spirit of the Constitution" on the 
Wool-Sack 114 

SECTION 5. 
Special pleadings— their fallacy 120 

CHAPTER IV. 

Of the Legality of Slavery by the Constitutions of the Slave 

STATeS. 

State of the Question. Abolition of Slavery in Massachusetts. 
Slavery unconstitutional in Delaware. Is Slavery constitutional 
in Maryland ? Other States. North Carolina, South Carolina, 
Louisiana, Kentucky, Tennessee, Mississippi. Conclusion.... 127 

CHAPTER V. 

The Declaration of Independence. 
The Charter of Liberty, but never claimed by Slavery. The Decla- 
ration a part of American Constitutional Law. Proofs of this po- 
sition. A constitution of government defined. The Constitution 
of 1776 still unrepealed. Historical facts. The Alternative. The 
Declaration of Independence, if the act of the separate States, 
equally fatal to legal slavery. The Declaration, never repudiated 
by the slave States, is still binding upon them 134 

CHAPTER VI. 
Of Slavery under Colonial Authority. Its Legality ques- 
tioned , 142 

CHAPTER VII. 
Nature and foundation of Government and Law. 
Parchments,papers,precedents. Whence their authority ? Compacts— 
on whom binding? Government as an ordinance of God. The 
" Social Compact" an exploded fiction. A more substantial theory 
needed. Where shall we find it? Civil government a science? 
compared with other sciences. Has its foundation in facts. Na- 
ture and relations of man. Scripture prophecy. First principles 
immutable. Can not be set aside by compacts and parchments. 
Recognized by Common Law. What is Common Law? Whence 
its paramount power? One universal law. Founded on the Di- 
vine Will. Constitution of civil government not arbitrary. Ab- 
surdities can not become law. Law can not be created by man — 
can only be discovered, obeyed, and applied. Harmony of our 
National Documents with these principles. Objections answer- 
ed 14» 



SYNOPTICAL INDEX 

OF THE FEDERAL CONSTITUTION OF 1787-9, IN ITS 

BEARING ON SLAVERY, AS EXHIBITED IN THE 

PRECEDING VIEW. 



I. — Portions of the document claimed as being inconsistent 

with Slavery, or authorizing its abolition by the National 

Government. 

1. — Object of the Constitution. 

" We, the people of the United States, in order to form a more perfec t 
Union, establish justice, ensure domestic tranquility, provide for the 
common defence, promote the general welfare, and secure theblessings of 
liberty to ourselves and our posterity, do ordain and establish this Consti- 
tution for the United States of America. " — {Preamble.} — See pages 7, 

40, 84, 97. 

2. — Powers Conferred. 

" This Constitution, and the jaws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of the 
land, and the judges in every State shall be bound thereby, any thing in 
the Constitution or laws of any State to the contrary notwithstanding." 
—{Article 6, Clause 2.]— See pages 41, 96, 109, 110, 113. 

« The Congress shall have power''—" To regulate commerce with for- 
eign nations, and among the several States, and with the Indian tribes." 
— {Art. 1, Sect. 8, Clause 3.]— See pages 43, 96. 

" To exercise exclusive legislation, in all cases whatsoever over such 
district (not exceeding ten miles square) as ma}', by cession of particular 
S^tes, and the acceptance of Congress, become the seat of government of 
the United States, and to exercise like authority overall places purchased, 
by the consent of the legislature of the State in which the same shall be, 
for the erection of forts, magazines, arsenals, dock-vards, and other need- 
ful buildings."— {Art. 1, Sect. 8, Clause 16,]— See pages 65, 96. 

<( To make all laws which shall be necessary and proper for carrying 
into executi07i'the foregoing powers, and all other powers vested by this 
Constitution in the government of the United States, or in any depart- 
ment or officer thereof." — {Article 1, Sections, Clause 17.1 — Seepages 

41, 84, 96. 

"The Congress shall have power to dispose of, and make all needful 
rules and regulations respecting the territory or other property belong- 
ing to the United States," &c. — {Article 4, Sect. 3, Clause 2.] — See pages 
63, 96. 

3.— Inhibitions or limitations of State Power. 
" No State shall" — "pass any bills of attainder, ex post facto law, or law 
impairing the obligation of contracts, or grant any titles of nobility." — 
{Art. 1, Sect. 10, Clause 1.]— See page 68, &c, 96. 

"No State shall, without the consent of Congress" — "keep troops, or 
ships of war in time of peace," — " or engage in war, unless actually in- 
vaded, or in such imminent danger as will not admit of delay." — {Art. 
1, Sect. 10, Clause 2.]— See pages 68, 75, 96. 

11 



162 ] SYNOPTICAL INDEX. 

" The citizens of each State shall be entitled to all the privileges and 
immunities of citizens, in the several States." — {Article 4, Section 2, 
Clause 1.] — See pages 75, 96. 

" The United States shall guaranty to every State in this Union a repub- 
lican form of government," &c. — [Article 4, Sect. 4.] — See pages 46, 96. 

4. — Guaranties of the rights of individuals, under Com- 
mon Law. 

el The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be viola- 
ted; and no warrants shall issse but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized." — [Amendments, Article 4.] — See 
pages 94, 96. 

" No person shall be' : — (i deprived of life, liberty, or property, without 
due process of law," &c. — [Amendments, Article 5.] — See pages 58, 93, 95. 

" Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof, or abiidging the freedom of speech, 
or of the press; or the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances." — [Amendments, 
Article 1.] — See pages 91, 96. 

5. — Further Recpgnitions of Common Law. 

" The privilege of the writ of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the public safety may re- 
quire it." — [Article- 1, Sect. 9, Clause2.] 

"No bill of attainder or ex post facto law shall be passed." — [lb. 
Clause 3.] — See page 96. 

" The trial of all crimes, except in cases of impeachment, shall be by 
jury, and such trial shall be held in the State where the said crime shall 
have been committed," &c. — [Article 3, Sect. 2, Clause 3.] — See page 95. 

" Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and com- 
fort. No person shall be convicted of treason unless on the testimony of 
two witnesses to the same overt act, or on confession in open court." — 
[Article 3, Sect. 3, Clause 1.]— See pages 33, 95. 

" The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture, ex- 
cept during the life of the person attainted. — [ lb. Clause 2. J 

" The President, Vice President, and all civil officers of the United 
States, shall be removed from office, on impeachment for, and conviction of, 
treason, bribery, or other high crimes and misdemeanors." — [Article 2, 
Sect. 4.] 

" In suits at Common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise re-examined, in any court of the United 
States, than according to the rules of the Common law." — [Amendments, 
Article 7.]— See page 93. 

" Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted."— [Amendments, Article 8.] — 
See page 93. 

" The enumeration, in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people." — [Amend- 
ments, Article 9.1 



SYNOPTICAL INDEX. 163 

" In all criminal prosecutions the accused shall enjoy the right to a 
speedy and public trial by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against him, 
to have compulsory process for obtaining witnesses in his favor : and to 
have assistance of counsel for his defence." — [Amendments, Articled.] — 
See page 93. 

' 6. — Qualifications of Voters and Officers. 
No distinction of color, of race, or of parentage is specified in the Con- 
stitution, among the qualifications either of voters or officers. — See pages 
86, 89. 

II. — Portions of the Document claimed by the slaveholder's 
^ as being a guaranty ■ -of slavery, or a compromise in its 
favor. ' ■ 

1. — "Representatives and direct taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three-fifths of all other 
persons," &c. — [Article I, Sect. 2, Clause 3.]— See pages 27, 89. 

2. — " The migration or importation of such persons as any of the States 
now existing shall think proper to admit, shall not be prohibited by the 
Congress, prior to the year one thousand eight hundred and eight, but a 
tax or duty may be imposed on such importation, not exceeding ten dol- 
lars for each person." — [Article 1, Sect. 9, Clause 1.]— See pages 28,89. 

3. — "No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu- 
lation therein, be discharged from such service or labor, but shall be de- 
livered up on claim of the party to whom such service or labor may be 
due." — [Article 4, Sect. 2, Clause 3.] — See page 21. 

4. — "The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the Slates, are reserved to the States re- 
spectively, or to the people." — [Amendments, Article 10.] — See page 37. 

5. — " Congress shall have power" — " to provide for calling forth the 
militia to execute the laws of the Union, suppress insurrections and repel 
invasions."— -Article 1, Sect. 8, Clause 14.] — See page 30. 

6. — "The United States [shall guaranty to every State in this Union a 
republican form of government and] shall protect each of them against in- 
vasion, and on application of the legislature, or of the executive, (when 
the legislature cannot be convened) against domestic violence." — [Article 
4, Sect. 4.]— See page 35. 



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LIBERTY PUBLICATIONS 

FOR SALE BY 



LIFE OF JAMES G. BIRNEY, by Beriah Green. 
JAY'S VIEW, by William Jay. 
AMER'N CONSTITUTIONAL LAW, by Wm. ( 
THE GREAT DUELIST, by J. Leavitt. 
SPEECH OF HENRY CLAY in U. S. Senate, I 
SPEECH OF THOMAS MORRIS in reply to CI; 
CONSTITUTIONAL ARGUMENT, by Gerrit Sm 
CREED OF THE LIBERTY PARTY, by A. Ste 
HOLLEY MONUMENT ADDRESS, by Gerrit S: 

And various other Works from time to time will t 
lished, of which due notice will be given. 

OC?" A DEPOT has also been opened at the ALBfflj 
LIBERTY OFFICE, Albany, by JAMES C. JAC 

at which the publications above named will be k< 
stantly on hand, for sale. 

UTICA, Feb. 15, 1855. 



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